Victory in One Federal Appeals Court for Employees with Temporary Disability

 
A recent decision by the Fourth Circuit of Appeals  (Summers v. Altarum Institute, Corporation, No. 13-1645 (4th Cir. Jan. 23, 2014)) found that an employee’s temporary condition may be considered a disability.  
 
In October 2011, Carl Summers, a statistical analyst for Altarum (a government contractor), fell as he was getting off a train.  He broke bones and tore tendons in both legs and needed surgery.  His doctors told him he would not be able to put any weight on his legs for at least six weeks. Doctors also estimated that it would be seven months before Summers could walk normally again.
 
Summers called Altarum’s HR Department from his hospital bed to ask about temporary disability (short term disability) benefits.  He also asked about working from home. The HR employee suggested that Summers should focus on getting well and that he could discuss accommodations for his temporary disability at a later time. Summers also contacted his supervisors to discuss working from home.  No one at the company ever followed up on his requests and in November Altarum fired Summers.  His position was filled by another analyst.
 
Summers sued Altarum, claiming that he was discriminated against because of his temporary disability in violation of the Americans with Disabilities Act (“ADA“). Congress enacted the ADA in 1990 to prevent discrimination of people with physical and mental disabilities in employment and other areas of life (education, public transportation, etc.)
 
According to the ADA, if an employee or applicant is otherwise qualified to do a job, the employer is required to make reasonable accommodations for a physical or mental impairment which greatly limits a major life activity (for example, breathing, walking, hearing, etc.) unless the accommodation would cause an “undue hardship for the employer.”
 
In order for the ADA to apply, the employee must inform his employer of the temporary disability. The employer and employee must then have a conversation (called “the interactive process”) to determine what kind of reasonable accommodations would be helpful and are available. An employer cannot take action against the employee (such as terminating or demoting) just because of the temporary disability and the employer does not want to be inconvenienced by offering an accommodation.
 
After the Supreme Court held in 2002 that a temporary disability due to injury or illness could not be considered a disability under the ADA, Congress amended the ADA in 2008 to expand the definition of “disability.” The Equal Employment Opportunity Commission “EEOC” (the government agency responsible for enforcing federal anti-discrimination laws) issued regulations stating that, for purposes of proving disability under the ADA, “an impairment lasting or expected to last fewer than six months can be substantially limiting.”
 
In Summers’ case, the lower court judge ignored the change in the ADA and the EEOC regulations.  That court found that Summers was not disabled because his injuries were temporary and he was expected to heal within one year.  That court concluded that Altarum had not violated ADA when it fired Summers.
 
Summers appealed the decision to the Court of Appeals for the Fourth Circuit, which reversed the lower court’s ruling.  The Appeals Court found that, under the ADA amendments and the EEOC regulations, even if an impairment is short-term it may qualify as a disability if it is “sufficiently severe.”  The Appeals Court concluded that the extensive injuries Summers suffered to both his legs could be considered “sufficiently severe” to justify protection under the ADA as a temporary disability. The Appeals Court sent the case back to the trial court for further litigation pursuant to this finding.
 
If you have questions about a temporary disability or short term disability and accommodations by your employer, FDPK’s experienced attorneys would be happy to assist you.  Feel free to call (412-281-8400) or email ([email protected]).  All inquiries are confidential.
 

The Department of Education Issues New Guidelines on Student Discipline

The U.S. Department of Education and the U.S. Department of Justice issued student discipline guidelines on January 8, 2014.  These guidelines were created in an effort to assist public elementary and secondary schools to administer student discipline without discrimination.

 
School districts need to use student discipline measures in order to promote safe and orderly educational environments for all students.
 
The goal of the new student discipline guidelines is to assist educators to identify, avoid and remedy discriminatory discipline so all students are given equal educational opportunities.  The guidelines also provide important information for parents and guardians about each student’s equal opportunity to learn and to grow while in school.
 
The 2011-2012 Civil Rights Data Collection (a mandatory data collection conducted since 1968) showed that discrimination in student discipline is a problem. The data demonstrated that students of certain racial or ethnic groups tend to be disciplined more than their peers.
 
The CRDC data also showed that an increasing number of students are losing important instructional time due to exclusionary discipline.
 
Exclusionary discipline is when educators use student discipline methods such as in-school and out-of-school suspensions, expulsions, or referrals to law enforcement. Exclusionary discipline methods often cause serious educational, economic and social problems. Those problems often include school avoidance, diminished educational engagement, decreased academic achievement, increased behavior problems, an increased likelihood of dropping out, substance abuse and involvement with juvenile justice systems.
 
Fair and equitable student discipline policies are an important part of creating a learning environment where all students feel safe and welcome. Schools are safer for everyone when students feel comfortable and are engaged in the school community, and when teachers and administrators have the tools and training to prevent and address conflicts and challenges as they arise.
 

If you have questions about student discipline and the rights of parents, guardians and students, contact Attorney Ed Feinstein ([email protected]), who has been advising parents and students about their educational rights for more than 30 years.
 
To review the student discipline guidelines, click here:  2014-01-08 Student Discipline Guidelines

Feinstein Doyle Payne & Kravec attorneys assist clients in getting disability benefits under employer sponsored disability plans.

 
If a serious medical condition makes it so that you cannot work, even temporarily, you may be entitled to disability benefits from your employer sponsored disability plan.  Be careful:  The process of applying for benefits has many pitfalls.
 
If you submitted a claim for disability benefits from your employer sponsored disability plan and your claim was denied, you should receive a letter from the insurance company informing you that you have the right to appeal the decision within 180 days.
 
That letter may have failed to tell you other important information, such as how to “perfect” your appeal and successfully reverse a claim denial.  If the letter fails to provide this information, this is a violation of a federal law known as Employee Retirement Income and Security Act (ERISA) and U.S. Department of Labor regulations that insurance companies are required to follow.
 

Your Employer Sponsored Disability Claim File

The insurance company’s letter may not inform you that you have the right to a copy of all the documents in your claim file.  You need to have these documents to be sure that the insurance company has all of your medical records and also to determine whether any important records are missing or were ignored.
 
It is important to see if your file contains a report from a medical professional who reviewed your records (but did not understand your medical issue) so that you can have your own doctor respond to that report.  You also should look at how the insurance company determined what your occupational duties are to see if the job description in your file accurately describes the demands of your job.
 
You have a right to review all of the employer sponsored disability benefit plan documents.  The insurer may have disregarded the language of your employer’s plan – which governs your right to benefits – and applied the terms of its own insurance policy instead.  You may need to request the plan documents from your employer, but the insurance company will not tell you so.
 
Even if the insurance company denial letter seems to inform you of your rights, the reasons why they denied your claim may be questionable.  The letter may show that your records were reviewed by an in-house physician.  Reviews by in-house physicians are problematic for several reasons:
 
(1) The review may be biased.  It is in the insurance company’s financial interest to deny your claim.  Insurance company employees who review your claim may be pressured to “cherry pick” your records for statements to show that the claim should be denied, and to downplay records that would support your disability claim.
 
(2) A “paper review” of your claim file, without a physical examination, may ignore some of your symptoms, such as pain, limited mobility, or impairment of your cognitive (thinking) abilities.
 
(3) The reviewer assigned to your file may not have the appropriate training and knowledge to interpret your records or understand the side effects of your prescription medications.
 
(4) The insurance company’s reviewer may say that your condition is due to “subjective” symptoms, and ignore your doctor’s clinical examination findings, or discount your condition because you did not have objective diagnostic testing, even though there may not even be tests for your condition.
 
The insurance company may have undertaken surveillance or searched social media sites to try to show that you are capable of the activities of daily living.  While such tactics are not illegal, insurance companies often misstate what a video surveillance shows.  For example, if you leave your house for a short period of time to go to a medical appointment or to care for yourself, it does not mean that you have the ability to work full time.  You have a right to review any surveillance and determine whether the denial letter accurately describes it.
 
You may have called the insurance company to explain why you believe that your claim should not hve been denied.  If you were told by the insurance company that your claim will be straightened out on appeal and you do not need to send any additional information, DO NOT BELIEVE IT.  If you do not make sure that all the information necessary to support your claim is in your claim file, and your appeal is denied, it will be difficult to add more information if you need to file a lawsuit in order to receive your employer sponsored disability benefits.
 
If you suspect that your employer sponsored disability benefits were improperly denied, Tybe Brett, our disability benefits specialist, is available for a consultation.

EEOC Backlog Continued in 2013

The Equal Employment Opportunity Commission “EEOC” is the federal agency that investigates employee complaints of illegal discrimination by employers.

 
If a person believes that he or she has been discriminated against because of age, race, color, religion, gender, or national origin, they must first file a complaint (known as a “charge”) with the EEOC. The EEOC sends the charge to the employer for a response.
 
The EEOC then investigates and may conduct a meeting of the parties and their attorneys in order to try to resolve the dispute. If it is not resolved, the EEOC will issue its findings. However, the employee may not take any further legal action until after the EEOC issues its report. Unfortunately, the EEOC investigation process has become long and drawn out, resulting in a backlog that has continued for several years.
 
In 2013, the average time for the EEOC enforcement staff to investigate and bring charges to resolution was 267 days (the agency’s goal is 180 days).  The EEOC received a total of 93,727 new private sector charges in 2013 alone, at the same time that many of its employees and offices were impacted by significant budget cuts (caused by the government sequestration and shutdown).
 
Different federal laws prohibit discrimination against people with disabilities (Americans with Disabilities Act or “ADA”) and discrimination against those over 40 years old (Age Discrimination in Employment Act or “ADEA”). Those laws require that a complaint be filed with the EEOC.  After filing a claim with the EEOC and the EEOC issues its findings, the employee may then sue in federal court.
 
Discrimination may occur if you are given an unequal job assignment, if you receive unequal pay for performing the same work, if you work in a hostile work environment (you are subject to nasty comments, ethnic slurs, etc.), or if you are terminated due to your race, gender, ethnicity, religion, disability, etc.
 
Despite the backlog, the EEOC was very successful in 2013.  It obtained $372.1 million for employees who were discriminated by their employers.  This is the highest yearly total in the agency’s 48 year history.  The EEOC also assisted more than 70,522 victims of discrimination through mediation, settlement and conciliation.
 
If you think your employer is unlawfully discriminating against you and you would like to discuss your circumstances with an attorney, please call Ed Feinstein or Sarah Martin of FDPK at 412-281-8400.
 
Our lawyers are experienced in dealing with every step of the EEOC process – from filing charges to handling settlement negotiations – and everything in between.
 
There may be tight time limits on filing charges with the EEOC and bringing your legal claims, so you should not sit on your claims.  If you have questions about discrimination by your employer, feel free to call or email at your convenience (email to: inquiries @fdpklaw.com).
 
More Information:  EEOC Issues FY 2013 Performance Report