Taking Time Off Work: Family & Medical Leave and Disability Insurance

Joanna Fawzy Morales, Esq.

Cancer Rights Attorney &

CEO, Navigating Cancer Survivorship

Taking Time Off Work:

Family & Medical Leave

and Disability Insurance

NAVIGATING CANCER SURVIVORSHIP

Navigating Cancer Survivorship provides

education and resources on the entire continuum of cancer survivorship issues. NCS offers:

• Speakers Bureau of experts & survivors

• Resources & materials at NavigatingCancerSurvivorship.org • A blog at NavigatingCancerSurvivorship.wordpress.com • Expert authors on cancer survivorship issues

• Seminars, teleconferences, webinars, & conferences • Cancer survivorship event planning & support

NCS partners with experts in the areas of medicine, mental health, nursing, social work, patient navigation, nutrition, oncofertility, law, employment, education, financial

management, insurance, relationships, sexuality and intimacy, pain and palliative care, advocacy, and other areas of cancer survivorship.

TAKING TIME OFF WORK

Key Topics:

• FMLA

• ADA reasonable accommodations • Medical certification

• State laws

• Disability insurance • Health insurance

INFORMATION NEEDS

• Timeline

• Potential Side Effects • Mitigation Strategies

Medical and

Treatment

Info

Work Info

Legal Info

• Federal & State Laws • Medical Leave

• Disability Insurance • Health Insurance

• Open and forthcoming

• Discuss job, including schedule and

demands

• Discuss priorities for returning to work

• Share concerns about treatment and side

effects that impact ability to work

PATIENT / HEALTHCARE TEAM

COMMUNICATION

Federal Fair Employment Laws

Americans with Disabilities Act (ADA)

• Discrimination protections for patients and caregivers • Reasonable Accommodations for patients

Family & Medical Leave Act (FMLA) State Fair Employment Laws

• Discrimination protections for patients and caregivers • Reasonable Accommodations for patients

Employment Contracts • Employment Contract

• Independent Contractor’s Contract • Union Contract

EMPLOYER POLICIES

• Employee Benefits

– Health/dental/vision insurance

– Short-term and/or long-term disability insurance – Life and/or accidental death insurance

• Other Benefits

– Sick time

– Vacation time or paid time off (PTO) – Pool of donated hours

– Flex time

– Telecommuting

• Medical Leave Process

Eligibility

• Federal law for:

- Employees with a serious medical condition

- Employees with a spouse, parent, or child with

a serious medical condition

• Employee: 1250 hours, 12 months (can be

nonconsecutive)

• Employer: private employers with 50+

employees (75 mile radius) and all

government employers (federal, state, local)

Protections

• Up to 12 weeks leave, per year • Unpaid leave

• Job protected

• Health insurance protected

FAMILY & MEDICAL LEAVE ACT (FMLA)

Definitions

• Serious health condition: illness, injury, impairment, or physical or mental condition that involves:

- any period of incapacity or treatment connected with inpatient care; or

- a period of incapacity requiring absence of more than 3 calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or

- any period of incapacity (or treatment therefore) due to a chronic serious health condition

• Health care professional:

- MDs, DOs, podiatrists, dentists, clinical psychologists, optometrists,

chiropractors, nurse practitioners, nurse-midwives, clinical social workers, Christian Science practitioners;

- any HCP recognized by the employer or the employer's group health plan's benefits manager

• Deciding the year period

• Asking for FMLA & giving notice

- Foreseeable v. unforeseeable

• Can work with the Americans With Disabilities Act

• Employers can require use of paid time off, vacation, & sick leave

• Employees can request use of paid time off, vacation, & sick leave

• FMLA protects your job; SDI, SSI, SSDI doesn’t

INTERMITTENT FMLA LEAVE

• Can be used in segments • Using FMLA leave for:

– Follow-up appointments – Days not feeling well

• Smallest increment of time

Eligibility

• Private employers with 15 or more employees and State/Local Governments

- Note: Federal employees covered by Rehabilitation Act of 1973 (similar to ADA)

• Be a “qualified individual”

• Have a disability under the ADA’s definition

AMERICANS WITH DISABILITIES ACT

(ADA)

Definitions

• Disability:

- “A physical or mental impairment that substantially limits one or more major life activities”

• Major life activity

• Eating, breathing, speaking, walking

• ADA Amendments: concentrating, thinking, sleeping, operation of major bodily functions

- Predictable assessments: cell growth

“An accommodation is any change in the work environment or in the way things are

customarily done that enables an individual with a disability to enjoy equal employment

opportunities”

WHAT ARE REASONABLE

ACCOMMODATIONS?

• Modify Workspace

– Ex: printer at your desk • Modify Schedule

– Ex: telecommuting or additional time off • Use of Technology

– Ex: smartphone or tablet • Change in Policy

– Ex: valet using restroom at the front of hotel

• Shift Job Responsibilities

– Ex: kindergarten teacher/recess duties

• Change Job

– Ex: move to a vacant position

1 2 3 4 5 6 8 9 12 AK HI IL ME MI MN MT NJ ND SD VT VA WI CO WY CT IA KS NM NY OH PA RI CA ID MA MO NH OR KY TN WA AR (but 15 for RA’s) WV

STATE FAIR EMPLOYMENT LAWS

EMPLOYER SIZE

• Employers entitled to medical certification for RA’s &

FMLA

- But diagnosis may not be required

- Patients should talk to their healthcare team

• Be careful of employer forms and state laws • ADA v. FMLA

• Employers CANNOT:

- Ask for copies of medical records

- Contact the health care provider for additional info • FMLA: Only to “authenticate” and “clarify”

• ADA: Maybe not w/o employee’s permission • Put your medical information in your employee file

• Name, address, phone #, and fax # of health care provider

• Health care provider's type of

practice/specialization

• Approximate date health condition began and how long it will

probably last

• Description of serious health

condition sufficient to support the need for FMLA leave

– E.g., symptoms, diagnosis, doctor visits, medications, continuing treatment, etc.

• “Sufficient documentation” to

substantiate that employee has a disability under the ADA and needs the requested accommodation

• “Sufficient” = Describes:

– nature, severity, and duration of impairment,

– activity the impairment limits,

– extent to which the impairment limits ability to perform the activity or

activities, and

– why a reasonable accommodation is needed

WHAT CAN AN EMPLOYER ASK FOR

FMLA vs. ADA

INCOME FOR CAREGIVERS

• State Paid Leave for Caregivers

- Ex: California & New Jersey

• IHSS

• In-Home Support Services, but may be called something different in each state

Disability Insurance

•

Private Disability Insurance

• Purchase through employer

• Purchase directly from company

•

State Disability Insurance

• CA, NY, NJ, RI, HI, and PR

•

Federal Disability Insurance

• Social Security Disability Insurance (SSDI) • Supplemental Security Income (SSI)

SSDI & SSI

• SSA Definition of Disability:

– You cannot do YOUR job; and

– You cannot adjust to a NEW job; and

– Your disability has, or is expected to, last for at least one year or to result in death

• Worked Enough

– Generally, need 40 credits, 20 in the last 10 years – Example: You earn one credit for each $1,130 – Earning $4,520 = 4 credits for the year

• Payments: 6th full month after becoming disabled, but can be retroactive 12 months (excluding waiting period)

• Eligibility

– Low income and few resources AND

• Age 65+; or • Blind; or

• “Disabled”

• Payments: 1

full month after becoming

“disabled

• Medicaid

• Visit

www.ssa.gov

to apply for SSDI & SSI

COMPASSIONATE ALLOWANCES

• SSA Compassionate Allowances Program

– Started in 2008

– Certain medical conditions = presumptively eligible – Approximately 60 cancer diagnoses

• Many applications initially denied

• Must appeal in writing within 60 days of receiving denial letter (5 days after date on the letter)

• Work with health care team • 4 Levels of Appeal:

- Request for Reconsideration

- Hearing by an Administrative Law Judge

• Applications who appeal to this level have a much better chance of getting their claim approved

• Consider representation - Review by the Appeals Council - Federal Court Review

ALJ HEARINGS - 2009

COBRA

• Employer-sponsored health insurance • Prevents job-lock

• Employers with 20+ employees

• Length depends on qualifying event

• Cost up to 102% of applicable employee rate

= Employer amount + Employee amount + 2% admin fee

Conversion

EMPLOYER-SPONSORED

HEALTH INSURANCE

STATE COBRA LAWS

States with COBRA statutes:

• AR, CA CO, CT, FL, GA, IL, IA, KS, KY, LA, MA, ME, MD, MN, MS, MO, NV, NH, NJ, NM, NC, ND, OH, OK, OR, RI, SC, SD, TN, TX, UT, VT, WV, WI, WY

• Details vary by state

• Most cover employees with 2-19 employees • Coverage lasts between 3-36 months

COBRA QUALIFYING EVENT MAXIMUM COBRA COVERAGE

Employment ends or hours reduced

18 months

Loss of dependent child status 36 months

Employee enrolls in Medicare 36 months

Divorce or legal separation 36 months

Death of employee 36 months

•

Prohibits discrimination based on pre-existing

medical conditions

•

Applies when moving from:

-

Group to group

-

COBRA to HIPAA plan

•

63 DAYS

HEALTH INSURANCE PORTABILITY &

ACCOUNTABILITY ACT (HIPAA)

Pre-existing condition exclusion periods (PECEP)

• Denial of coverage for a period of time for your pre-existing conditions

• Group plans can’t deny employees insurance, but they can impose a PECEP

• PECEP = 12 months maximum

- Some states less, for example: CA

• 1-2 employees = up to 12 months

• 3+ employees = up to 6 months

• PECEP runs concurrently with waiting period for benefits

Creditable Coverage:

• Almost any type of comprehensive health insurance

• Except some student health insurance plans

• Goes with you from one health insurance plan to another

• Reduces or eliminates a PECEP imposed by a new group plan

• No gap in coverage more than 63 days

REDUCING OR ELIMINATING

PRE-EXISTING CONDITION EXCLUSIONS

You had health insurance through your previous employer for 3 months.

Your new employer health plan is imposing a pre-existing condition exclusion period (PECEP) of 6 months.

6 month PECEP –

3 months of creditable coverage = ????

How long will your exclusion period be?

HIPP Program

• Health Insurance Premium Payment Program • Through State Medicaid

• Not available every where

Financial Assistance Programs

HELP PAYING FOR

HEALTH INSURANCE

Legal Assistance:

• National Cancer Legal Services Network www.NCLSN.org

• LawHelp www.lawhelp.org Employment Rights:

• Equal Employment Opportunity Commission www.EEOC.gov • Job Accommodation Network www.AskJan.org

• U.S. Department of Labor (COBRA) www.dol.gov/EBSA • U.S. Department of Labor (FMLA) www.DOL.gov/WHD Disability Insurance Options:

• Social Security Administration: www.SSA.gov Health Insurance Options:

• www.HealthCare.gov

• www.PCIP.gov

Cancer and Careers empowers and educates people with cancer to thrive in their work environment by

providing expert advice, interactive tools and educational events.

• CancerAndCareers.org

• Publications in English and Spanish

• Job Search Tools

• Accredited Programs for Healthcare Professionals

• CancerAndCareers.org/es

• Ask The Experts Teleconferences

• Community Events

• National Conference

Joanna Fawzy Morales, Esq. JM@NavigatingCancerSurvivorship.org Twitter @CancerRights Blog www.NavigatingCancerSurvivorship.wordpress.com Website www.NavigatingCancerSurvivorship.org

CONTACT INFORMATION