Americans with Disabilities Act

In addition to prohibiting discrimination against persons with disabilities, the Americans With Disabilities Act requires employers to accommodate qualified persons with disabilities to help them perform the essential functions of their jobs. Accommodations may include flexible scheduling and modifications to the work environment. A reasonable accommodation may also take the form of a disability leave of absence. Leave under the ADA may be available in conjunction with or in addition to leave under the FMLA.

There are several significant differences between the ADA and the FMLA. The ADA applies to employers with as few as 15 employees. It has no geographical restrictions and is a legal right that starts on the first day of employment. However, establishing a disability under the ADA is much harder than a “serious medical condition” under the FMLA. For ADA purposes, the employee must demonstrate his or her disability significantly impairs a “major life activity”.

A growing area of my practice is assisting clients with claims for private disability benefits. Many employers provide both short-term and long-term disability benefit coverage as part of the employees’ fringe benefit package. Unfortunately, many employees do not realize that the insurance company, not the employer, usually makes the determination of eligibility for benefits. Moreover, the law governing disability benefits, called the “Employee Retirement Income Security Act,” or “ERISA” for short, heavily favors the insurance companies, not the employees. The courts have held that an insurance company need only articulate a reasonable basis for a denial of the claim. This “reasonable basis” often takes the form of a report from a physician paid by the insurance company who, on nothing more than a review of medical records, renders an opinion that the employee is capable of working.

Presenting an incomplete application for disability benefits will often result in an initial denial and delay of your benefits during an appeal. Our office will help you prepare your claim and present it in its best and strongest light the first time increasing the likelihood of an early approval. If the insurance company denies your claim, we will aggressively pursue an appeal on your behalf.