WHAT HAPPENS WHEN YOUR UNPAID LEAVE IS OVER?
In instances where people become ill or are injured and require a long recovery, they often are unaware of how much time is coming to them. New York is an at will state, meaning your employer can fire you for any reason except an illegal reason (e.g., because you are a member of a protected class: gender, race, ethnicity, etc.)
The Family Medical Leave Act (FMLA) requires that most employers (small employers – fewer than 50 employees – are exempt) provide up to 12 weeks of unpaid leave in a 12 month period if illness renders them unable to work, or if they need to care for an ill family member. In order to be eligible for FMLA, you need to apply for FMLA leave. That means you must advise your employer that you need the leave, and fill out the proper forms including a doctor’s statement.
After the 12 weeks are up, your employer has no obligation to hold your job for you unless he or she has a formal policy in place that provides a greater benefit than FMLA requires. New York also has mandatory short-term disability coverage of up to 26 weeks of benefits (up to $170 per week), but your employer only has to hold your job the 12 weeks. If you were injured on-the-job, then you may also have a workers’ compensation claim.
Finally, be aware that many employers provide long-term disability (LTD) coverage. LTD coverage for private employers over a certain size is governed by the Employee Retirement Income Security Act of 1974 (ERISA). Such coverage often provides a benefit equal to a percentage of pre-disability income (typically 60%), less disability benefits from other sources (e.g. workers’ compensation, Social Security disability, etc.).
To find out if you have LTD coverage from your employer, you should request your summary plan description. Make this request in writing because your employer only has 30 days to respond and could face penalties of up to $110 per day if they are late.
DISABILITY CRITERIA UNDER CSRS/FERS
For federal employees seeking to make a disability claim under the CSRS/FERS disability retirement systems, sometimes just knowing whether you are eligible to make such a claim can be confusing and complicated. And although the terms defined in the CSRS/FERS Disability Manual are meant to help you determine disability eligibility, sorting through those definitions can be annoying, at best, and impossible, at worst, when you are struggling to deal with an illness or injury.
So, let’s examine some of those terms and put them into relevant context; what do they all mean, exactly?
For instance, according to the OPM, CSRS/FERS Disability Manual on Disability Retirement, one of the criterion for filing a claim states that you must have a deficiency in service with respect to performance, attendance, or conduct, or, in absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position. Translated, this means that if you are disabled and want to file a claim, you must prove that your disability adversely affects your work. For example, you cannot do your job as well, you are having to take too much time off and cannot keep up with the work, or your disability, whether physical or psychological, has a negative impact on your overall behavior.
Regardless of whether your job performance already is negatively affected or whether it will be in the future, you should always go to your doctor and obtain detailed medical documentation.
The CSRS/FERS Disability Manual also states that your medical condition is defined as a health impairment resulting from disease or injury, including psychiatric disease. This seems straightforward, however, there may be some gray areas. For example, a person may have been diagnosed with Juvenile Diabetes, and may have been able to manage the disease for many years. Then, at some point, the diabetes becomes much more complicated, and begins to interfere with everyday job performance. When filing for a CSRS/FERS disability claim, the claimant will have to show medical documentation that his diabetes, which he has lived with almost a lifetime, now results in a deficiency in service. You cannot assume that OPM, because they were informed about your pre-existing illness, will simply approve your claim.
According to OPM, you also must prove a relationship between the service deficiency and the medical condition. That is, simply having a medical condition is not enough. The medical condition must cause or contribute to the deficiency in service. And, you must present medical documentation that your disability will continue for at least one full year.
The last two items on the eligibility list deal with accommodation. When you are filing for disability, you have to prove that your employer cannot accommodate your medical condition in the workplace; (The inability of the employing agency to reasonably accommodate the employee’s medical condition). For example, a person with Chronic Fatigue Syndrome might need a reduction in hours. Or, someone with severe allergies might require a dust-free environment. While it sometimes is possible for employers to accommodate these special medical needs, much depends upon the type of work done in that facility, the physical characteristics of the building, the size of the staff, etc. If your employer is unable to accommodate your disability, you then are eligible to file a disability claim.
Finally, when you file a CSRS/FERS disability claim, your employer may be able to reassign you in order to accommodate your disability needs. (The agency’s consideration of the employee for reassignment to any vacant position within the employing agency and commuting area, at the same grade or pay level for which the employee is qualified.) If this is not a reasonable possibility, you are eligible for disability retirement. Conversely, if your employer is able to accommodate your reassignment, and you turn it down, that can adversely affect your disability claim.
Most important, if you are considering filing a CSRS/FERS disability claim, make certain you have read through your CSRS/FERS Disability Retirement Manual, have all of your medical documentation in order, and consult with an attorney knowledgeable in CSRS/FERS disability law.
LEGISLATIVE NEWS . . .
Akaka & Tester Call For Deliberate Action To Fix VA’s Veterans’ Disability Compensation System
Washington, D.C., September 17th 2009 . . . Today, U.S. Senator Daniel K. Akaka (D-HI), chairman of the Veterans’ Affairs Committee, heard testimony on the state of VA’s system for disability compensation. Witnesses from VA, veterans service organizations, and the larger disability policy community urged cautious movement towards fixing what many acknowledge is a broken system.
Senator Akaka stated: To bring the right changes to a process this complicated and important, we must be deliberative, focused, and open to input from all who are affected. At the same time, we cannot be paralyzed by complexity; the current system is already outdated, and it will get worse until we act.
Senator Tester stated: No doubt about it – we need to measure twice and cut once, not the other way around. I hope that among the experts in the room making decisions on ratings are the fighting men and women who are coming back. I would bring them in early in the process, not after the fact. Later in the hearing, under further questioning from Tester, VA officials pledged that veterans would be alerted early in the process of any revisions to the disability compensation process. Today’s hearing is the latest in a series on veterans’ disability compensation. Witnesses included representatives from VA, Economic Systems, Inc., Committee on Disability Compensation, Disabled American Veterans, Paralyzed Veterans of America, and Easter Seals. Source: veterans.senate/gov
HISTORY QUIZ . . . Who was this great American?
He was born in Massachusetts in 1735, and was a Harvard-educated lawyer. He served as Ambassador to France and Holland. He served as Vice President of the United States twice. He served as President of the United States. His closest advisor was his wife.
Answer: John Adams
HEALTH INSURANCE COSTS UP FOR FEDERAL EMPLOYEES
According to the Office of Personnel Management, federal employees will experience a rise in health care premiums in 2010. Not surprisingly, this comes as a result of overall health care cost increases across the U.S., as well as the general aging of the federal workforce.
Estimates put the cost increase to federal employees at approximately 8.8 percent, making this the third price hike in the last three years.
The average total increase per pay period will be approximately $25.57 (7.4 percent). However, the federal government will increase its contribution by 6.8 percent (approximately $16.35 per pay period), leaving the remaining 8.8 percent increase (approximately $9.21 per pay period) to federal employees and their families.
EXTENSION OF AGENT ORANGE BENEFITS TO VIETNAM VETS
Earlier this month, Secretary of Veterans’ Affairs, Eric K. Shinseki, announced the establishment of a service-connection for Vietnam Veterans with three illnesses that have long been associated with exposure to Agent Orange. They are B cell leukemias, Parkinson’s disease, and ischemic heart disease. Shinseki based his decision on additional research conducted by the Institute of Medicine.
Agent Orange was used in Vietnam and other parts of Southeast Asia by the American military to defoliate the area. It has been estimated that 2.6 million U.S. military personnel were exposed to this chemical.
What does this mean to those affected? It means that they no longer have to prove an association between their diseases and their military service. According to the VA, this should help to speed up the VA benefits process.