DISABILITY EXPOSED - ADA, FMLA, Insurance

OVERVIEW

Globally the employer often maintains the responsibility for medical, disability, and life insurance and pension funds of a full-time employee; however, some employers fire an employee who is on a disability leave.  As a disabled person, you must understand your federal, state and city disability rights otherwise your employer could withhold mandatory disability rights notices, violate your rights and waive them when you have guaranteed statutory disability rights.  As a disabled person, my former employer, Barclays Capital, denied reasonable accommodation and terminated me while on a disability leave.  Barclays tricked me into a settlement because the settlement involved two contracts.  When Barclays would not honor the terms of the EEOC contract for no discrimination or retaliation based on the Americans with Disabilities Act, my goal became informing other people about disability rights so another disabled person does not fall for the same tricks. 

This Employment Disability blog overviews the differences between the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) rights for a full-time employee and explains waivers of disability rights through settlement agreements.  Furthermore this blog provides a resource for disabled persons about disability insurance including short-term and long-term disability insurance, life insurance and pension funds.  If you have a disability and your employer interferes with your medical leave, then this blog explains help for your situation.

Please send your comments or ideas to Kara.Hewett@gmail.com or add your comments to the site below.  A new page called "DISABILITY LAWYERS" has been added to the website which offers a disability lawyer free advertisement and promotion of their services and includes the contact information to the Equal Employment Opportunity Commission and United States Department of Labor. 

BACKGROUND

This blog developed because an employer refused reasonable accommodation and medical leave for a disability that requires continuing medical treatments.  In the case Hewett v. Barclays Capital, United States District Court, Southern District of New York 12-CV-1317 and 12-CV-6501, Barclays Capital terminated the disabled employee who was a Vice President at a global investment bank in New York City. The Plaintiff experienced recurrent lung infections during her employment over a seven month timeframe.  While on a short-term disability for a lung infection, the global investment bank ordered the Plaintiff to a medical exam with a pulmonologist on threat of termination, and the Plaintiff brought medical records to the exam.  

Barclays ordered the Plaintiff to a "strip search" medical exam that required the removal of her clothes with this independent pulmonologist touching her breasts, and I went to the New York City Police Department to file criminal forcible touch charges against Barclays pulmonologist.  Barclays doctor was not charged with criminal forcible touch only because he held a stethoscope in his hand, and the NYPD supervisory detective did not believe that Barclays doctor had criminal intent.  This independent medical examiner could not determine the cause of the recurrent lung infections.  The employee has a genetic immune deficiency which is determined through blood laboratory analysis and family medical history. The pulmonologist approved the disability and recommended reasonable accommodation until stabilized on appropriate medication.   

While on the disability the Plaintiff was referred to Yale Hospital for medical treatments.  The referral to Yale Hospital was for intravenous immunoglobulin therapy which is a blood plasma transfusion collected from more than 1000 donors.  As with any blood product, some risks including the potential of death exist as a possible side-effect from a plasma transfusion.  [ Privgen and Carimune NF IVIG: Warning: IVIG products have been reported to be associated with renal dysfunction, acute renal failure, osmotic nephrosis, and death.]  Because of the risk of death associated with a plasma transfusion, the Plaintiff did not seek the plasma transfusion in the hospital while employed at Barclays.   

The Plaintiff's doctor requested return to work with reasonable accommodation four days after the Yale Hospital referral, and the employer fired the Plaintiff on the same day. The Plaintiff never received even one hour of FMLA, and the employer denied reasonable accommodation.  The employer entered into a settlement agreement at the New York City EEOC which included a separate general release and waiver that waived all reasonable accommodation, FMLA and other disability and legal rights.

When fired the Plaintiff had legal rights to FMLA reinstatement and the full twelve weeks of FMLA reduced schedule leave.  Also both the independent medical examiner and the employee’s doctor agreed and requested ADA reasonable accommodation. The employer fired the employee saying that reasonable accommodation was an "undue hardship".  An experienced employment attorney would understand the complex disability legal issues; however, a disabled person may not.

The author of this blog was the Plaintiff in the cases Hewett v. Barclays Capital [12-CV-1713 and 12-CV-6501].  I have severe common variable immune deficiency which is a primary immune deficiency.  Primary immunodeficiencies are disorders in which part of the body's immune system is missing or does not function properly. Most primary immunodeficiencies are genetic disorders.  Common variable immunodeficiency (CVID) is a group of approximately 150 primary immunodeficiencies (PIDs) and is the most commonly encountered primary immunodeficiency.  [ http://en.wikipedia.org/wiki/Common_variable_immunodeficiency ]  About 1 in every 500 people have a primary immune deficiency.  Severe primary immune deficiencies which reflects more than two standard deviations below the mean metric occur in about 1 of every 10,000-50,000 people.  The occurence of primary immune deficiencies is under-represented because detection is difficult and costly. 

Common variable immune deficiency is associated with recurrent sinopulmonary infection; autoimmune disease including allergies and asthma; and cancer.  About 70-80% of patients with common variable immune deficiency have recurrent sinopulmonary infection. [ http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2919211/ ]  Clinical research indicates that asthma and allergies are autoimmune diseases with a common pathophysiological mechanism. [ http://www.ncbi.nlm.nih.gov/pubmed/14646381 ]  For the respiratory disability, I receive medical treatments from an immunologist and asthma treatments.  Although common variable immune deficiency is genetic and thus not reversible, immunology treatments reduce sinopulmonary infection and provide a longer and better quality of life.  My doctor has said that I give him hope because I live a somewhat normal life without IVIG  using allergic immunotherapy, asthma medications and antibiotics.   If you have a primary immune deficiency and/or CVID and are considering treatments other than IVIG, I welcome your correspondence at Kara. Hewett@gmail.com. 

Some years I experience infrequent or no sinopulmonary infection, but others years I suffer severe sinopulmonary infection.  As a child, a doctor told my father that I could die from a bacterial pneumonia which began as strep throat and became strep pneumonia.  During the childhood pneumonia, the school provided reasonable accommodation with take-home assignments and exams.  At Barclays Capital I experienced seven months of recurrent lung infections and asthma attacks, but Barclays refused reasonable accommodation, denied FMLA leave and fired me.  

UNDERSTAND YOUR DISABILITY

The most important step in a disability claim is an accurate diagnosis and understanding of your disability.  The most frequent diagnostic errors for common conditions seen by primary care doctors are pneumonia, heart failure, kidney failure, cancer and urinary tract infections.  [ Ostrow, Nicole.  February 25, 2013. "Pneumonia, Heart Failure Among Most -Missed Diagnoses".  Bloomberg News citing Dr. Hardeep Singh in JAMA Internal Medicine]  With a serious medical condition, you may only be aware of a seemingly mild symptom.  The classic example is chest pain precedes a heart attack.  Take your symptoms seriously and follow any medical advise as a safety and health precaution.    Your medical condition may be worse than you understand.  


When a person has an infection, antibodies may be elevated, and certain types of immune deficiencies, autoimmune diseases and cancers cannot be diagnosed or misdiagnosed during acute infection.  A doctor must determine the severity of the medical condition.  The point of the immunology measurements is a diagnostic tool for doctors who evaluate the disability.  If a patient has recurrent infection and low antibodies or a weakened immune system, then an immunologist could approve a disability during immunology treatments.  The field of immunology is one of the fastest growth areas of medicine, and many common medical conditions such as cardiovascular disease, obesity, diabetes, cancer, asthma, recurrent infection have an immunological and/or genetic cause.  [ http://www.nlm.nih.gov/medlineplus/geneticdisorders.html ]    

Some serious medical conditions such as cancer require many and repeated diagnostic tests.  Likewise cancer researchers can now trace family medical histories, genetics and evaluate significant laboratory results in the diagnosis and determination of the severity of cancer.  [ http://cancer.stanford.edu/information/cancerDiagnosis/ ]  As a result when you experience a serious medical condition, seek the full allowance of your Family and Medical Leave Act and frequently follow up with your doctor.  Early detection and treatment of serious medical conditions saves lives.   

As a prominent example for the advantages of early detection and treatment of cancer, in October 2003, Steve Jobs was diagnosed with pancreatic cancer; however, he resisted his doctors' recommendations for mainstream medical interventions for nine months instead consuming a special alternative medicine diet. [Elkin, Peter.  March 5, 2008.  "The trouble with Steve Jobs." Fortune]  According to Harvard researcher Ramzi Amri, Steve Job's choice of alternative treatment "led to an unnecessarily early death." [Graham Smith.  "Steve Jobs doomed himself by shunning conventional medicine until too late, claims Harvard expert."  Daily Mail.  October 14, 2011].

No employer can guarantee a safety net to all employees.  An employee should learn as much about the medical disability and employer-sponsored disability options.  If the disability is severe or expected to worsen, then the employee can request the doctor's participation in enrollment for a short-term or long-term disability insurance program.

FREQUENT WRONGFUL TERMINATION

In many industries, employers frequently fire or encourage a voluntary separation and settlement of persons with disabling conditions.  As another example of a disability separation, a Managing Director who was married with four children left a large corporation with non Hodgkins Lymphoma cancer and died about a year later. If the employee's insurance was through the employer, then the family has no life insurance proceeds because the disabled person left the employer while he was alive.  Sadly a disabled person with non Hodgkins Lymphoma will be completely uninsurable individually for short term and long term disability insurance or life insurance.  Employees purchase insurance through the employer and never expect that they will be fired on disability and lose the insurance coverage.

In the United States, the employer creates a "disability domino" effect.  If the employer fires the disabled employee, then a domino effect of harm occurs.  The disabled employee loses all employer-sponsored health insurance, short-term and long-term disability insurance and life insurance.  This blog aims at an exploration and understanding of the "disability domino".  An educated employee could take the necessary legal steps for activating disability insurances including reinstatement if terminated.  In the example of a disabled employee with terminal cancer, the employee should enroll in long-term disability insurance, remain on employer health insurance and continue with employer life insurance for the remainder of his life.  As Americans we work hard for our employers, and we do not think about how life looks and plays out when we are disabled.

INJUNCTION AND REINSTATMENT

If your employer fires you, think outside the box.  If you have a serious medical condition or disability, go to the United States District Court for the region of your employer and file a lawsuit seeking reinstatement based on the Family and Medical Leave Act or Americans with Disabilites Act.  In the lawsuit seek an injuction that requests immediate reinstatement plus any damages and the usage of your employer-sponsored health insurance, short-term or long-term disability insurance.  Do not waive your rights under the Family and Medical Leave Act or the Americans with Disabilities Act if you have rights that are guaranteed by statute.  If you waive your rights, then you will permanently lose them.

ADA DISABILITY DISCRIMINATION & FMLA LEAVE
 

Americans with Disabilities Act is civil rights law and the Family Medical Leave Act is labor law. This distinction is important because the waiver of these rights and employer excuses are different. Under the Americans with Disabilities Act, the employer may refuse reasonable accommodation or reduced schedule leave as undue hardship; however, a jury may not have determined the reasonble accommodation as undue hardship awarding financial damages if the case proceeded to trial.  An attorney could advise you about the legal precedence and interpretations of "reasonable accommodations" and "undue hardship".  In other words the employer could claim an "undue hardship", but the case law and legal precedence may determine that your reasonable accommodation is not an undue hardship.  

Under the Family and Medical Leave Act the employer must provide FMLA leave and reinstate the employee irrespective of undue hardship.  [The FMLA provides that an employer may not "interfere with, restrain, or deny the exercise or the attempt to exercise" FMLA rights.  29 U.S.C. Sec 2615 (a)(1).]  So under the FMLA Barclays was required to reinstate the employee with reduced schedule leave for 12 weeks and employer paid health insurance.  My eligibility for FMLA began on March 22, 2011, and a short-term disability began two days later of March 24, 2011.  So on the termination date of May 6, 2011, I had the full twelve weeks of FMLA for reinstatement with a light duty assignment.  [Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA.  An employee may have voluntary and uncoerced acceptance of a "light duty" assignment while recovering from a serious health condition.   29 CFR 825.702(d)]

Under the Family and Medical Leave Act the employer must provide an Eligibility Notice and a Designation Notice.  [For an Eligibility Notice the FMLA Final Rule specified what information an employer must convey to an employee including FMLA leave available in the current 12-month period... right to substitute employer-provided paid leave....  29 CFR 825.300(b)(2)]  A FMLA "serious" medical condition involves incapacitation of more than three days, inpatient hospitalization or a medical condition that requires continuing medical treatments.  [For a Designation Notice the FMLA Final Rule specified that once the employer has enough information to determine whether the leave qualifies as FMLA leave, the employer must notify the employee within five business days of making the determination whether or not the leave has or has not been designated as FMLA leave. 29 CFR 825.300(c)(1) ]  If the employer does not give notice, then the FMLA Final Rule could make the lack of notice as interference with, restraint of, or denial of the use of FMLA leave.  [29 CFR 825.301(e)] 

Finally any award of punitive damages varies based on the Americans with Disabilities Act and the Family and Medical Leave Act.  Under the Americans with Disabilities Act punitive damages can be more limited if the employer makes a "good faith" effort at reasonable accommodation. [Engaging in an  interactive process helps employers to discover and provide reasonable accommodation. Moreover, in situations where an employer fails to provide a reasonable accommodation (and undue hardship would not be a valid defense), evidence that the employer engaged in an interactive process can demonstrate a "good faith" effort which can protect an employer from having to pay punitive and certain compensatory damages. See 42 U.S.C. § 1981a(a)(3) (1994).] Under the FMLA, punitive damages apply if the interference with FMLA rights was intentional.

When I was on the short-term disability, I did not understand the fundamental differences of the Americans with Disabilities Act and the Family and Medical Leave Act.  If your employer asks you about an application for ADA or FMLA, then apply for both because you can benefit from the legal protection of both statutes.  Otherwise the employer could fire you citing undue hardship if you only apply for ADA.  Also Barclays Capital did not provide either the FMLA Eligibility or Designation Notice, but Judge Castel of USDC, SDNY upheld the settlement agreement because it waived FMLA violations based on "past" employer conduct.  As a disabled person, you must understand your FMLA and ADA rights otherwise your employer could withhold disability rights information, violate your rights and waive them when you have guaranteed statutory disability rights.

DISABILITY AND LIFE INSURANCE

A disabled person may purchase short-term and long-term disability insurance and life insurance policies through an employer, a government program or individually.  Some types of disability may result in insurance companies refusing insurance coverage because the disability is considered an uninsurable risk.  Examples of uninsurable disabilities are chronic obstructive pulmonary disease or advanced stage cancer.

Short-term and long-term disability insurance including worker's compensation may be acquired through an employer, and the state regulates many disability insurance laws.  About five states (California, Hawaii, New Jersey, New York and Rhode Island) have statutory disability insurance laws.  Short-term disability insurance provides coverage for disability leave between 3-6 months based on the state law. 

Long-term disability insurance covers disability leave longer than 3-6 months depending on the state law.  In most states long-term disability begins after 3 months of incapacitation.  The employer contract with the insurance provider determines the length of the long-term disability policy.  Some employers provide coverage for one year of long-term disability while other employers provide coverage for two or five years.  On rare occasion an employer offers an unlimited duration of long-term disability benefit until the age of 65.  Some employers limit the length of long-term disability coverage based on the age of the employee when the long-term disability occurs.  As an example an employee who enters into long-term disability at the age of 62 would be eligible for three years of coverage until age 65 but an employee who enters into long-term disability at the age of 60 or younger would be eligible for five years.  As an important observation, the employer contract with the insurance provider and not federal or state law controls the terms of the employee's long-term disability coverage that is paid by the employer.

When an employee has been certified with a long-term disability, the employer determines when the employer will terminate the employee.  This statement may seem odd, but some employers have a standard human resources policy that terminates any employee who has been on long-term disability for one year and is medically unfit for work.  If the employer terminates an employee who is on long-term disability, then the employee maintains disability insurance but not life insurance.  Also the employee is not guaranteed reinstatement if the medical condition improves. 

EEOC SETTLEMENTS BEHIND THE SCENES

Unfortunately some employers discriminate against a disability that requires continuing medical treatments and terminate the employee.  What happens if the EEOC mediates your disability complaint?  In the case Hewett v Barclays Capital, Barclays fired the disabled employee and refused both reasonable accommodation and FMLA leave. Then after the termination, the EEOC mediated the termination and disability discrimination complaint between the employee and employer.  During this mediation session, the employee entered into contracts that waived more rights than she understood based on the mediation discussion.  Specifically the employee entered into a neutral settlement agreement with the EEOC that included no retaliation or discrimination based on the Americans with Disabilities Act.  In the mediation session Barclays attorney, Barclays Human Resources, the mediator and I agreed to no discrimination or retaliation verbally, and we all three; Barclays attorney, Barclays Human Resources representation and I; signed a contractual agreement with no retaliation or discrimination based on the Americans with Disabilities Act.

Barclays entered a separate general release and waiver that included a “No ReHire” clause.   The Americans with Disabilities Act would allow reinstatement or application to any open position; however, Judge Castel of the United States District Court, Southern District of New York determined that the "No ReHire" clause waived these ADA rights despite the contradictory EEOC settlement clause.  The EEOC contract noted the Barclays General Release and Waiver but stated that the EEOC is not a party to the Barclays General Release and Waiver.  A disabled employee should have an attorney review contracts before execution because attorneys will have seen many employment severance agreements, and the employer could put anything however discriminatory into the second contract. 

The New York EEOC confirmed that the EEOC settlement agreement is neutral with no retaliation or discrimination based on the Americans with Disabilities Act; however, the employer may only agree to a settlement if a general release and waiver is included.  If you have filed a discrimination complaint, you may have other financial alternatives.  If you have not used your full 12 weeks of FMLA, then you can request reinstatement based on the FMLA with reduced schedule leave also called a "light duty" assignment at the United States District Court.  Also 401K plans allow a disability withdrawal without penalty if you provide medical evidence of disability.  These other financial options give you some financial protection if you do not wish to waive your Americans with Disability Act rights through a general release and waiver.  

For anyone with a disability, if an employer refuses reasonable accommodation or medical leave and fires you, then you may have rights to reinstatement, compensatory and punitive damages under the Americans with Disabilities Act and Family and Medical Leave Act.  If you waive your Americans with Disabilities Act and FMLA rights under a general release and waiver agreement, then you have lost your right to sue and reinstatement under the Family and Medical Leave Act, your health/life/disability insurance coverage and your rights to sue for reinstatement and retaliation under the Americans with Disabilities Act permanently. 

ATTORNEY

If you have a disability that requires ongoing medical treatments, then it's highly advisable that you find an attorney who understands the disability law for FMLA and ADA, state short-term and long-term disability insurance for the state of your employer's office, and any other applicable disability laws including insurance policies.  (Short-term and long-term disability insurance is typically covered under state law whereas the FMLA and ADA are federal law.)  Many attorneys specialize such as disability insurance benefits, FMLA violations or employment discrimination based on the ADA.  As an example, some attorneys such as government prosecutors may specialize in disability laws based on the city or state statutes.  When an employer initially denies reasonable accommodation or requires medical certification, then the disabled person should seek an attorney.   


Also an attorney should review any contracts before execution because an employment attorney will have seen many contracts; however, the disabled person may be viewing a general release and waiver agreement for the first time.  With hindsight after the settlement, I learned that attorneys who specialize in contract law will review contracts even if they were not involved in the discrimination claim, but most attorneys prefer handling a case from the initial complaint.  An attorney typically will only take a case that has not been settled.  A new page called "Disability Lawyers" has been added to this website as a resource for law firms to advertise and promote their services for free to disabled employees. 

If an employer orders an employee to a medical examination or forces the removal of clothes as a condition of employment, immediately contact an attorney.  I foolishly cooperated with the employer's demands, but the Americans with Disabilities Act requires "business necessity" to any medical examination.  Barclays never proved that the "strip-search" pulmonary examination of an employee with a doctor touching my breasts was business necessity.  Also the collection of family medical history as genetic evidence is prohibited in a medical examination.  Barclays pulmonologist demanded family medical history including the death of my maternal grandmother from cardiac arrest and asthma at the age of 39. 

As further violations of law, Barclays Capital never provided the FMLA Medical Certification, FMLA Eligibility Notice or FMLA Designation Notices that are mandatory with medical certification.   Barclays Capital sent a letter to my house while I was in bed at home ill with a lung infection that required an independent pulmonary examination if I desired continued employment at Barclays Capital.  Barclays never sent the proper Americans with Disabilities Act or Family and Medical Leave Act legal notices that define medical certification criteria, and Barclays would not accept the medical certification or verbal or written requests for medical leave from my doctors.   

If your employer ever requests a medical examination as a condition of employment, you must find an attorney!  Do NOT waive your rights to SUE for this medical examination request that involves the removal of clothes and breast touching as a condition of employment.  Any employer medical examination must be job-related and consistent with business necessity, and a doctor's physical breast touch even as part of a pulmonary examination would likely not be job related.  [ Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that" an employee's ability to perform essential job functions will be impaired by a medical condition. "  29 C.F.R. Sec. 1630.14(c) ] The doctor's attorney argued in court proceedings that a physical breast touch pulmonary examination was a typical pulmonary exam, but he did not prove business necessity for the breast touch of an employee.  If the rights to sue have not been waived, then the employee could sue for a breast touch medical examination as not job-related. 

The employer will be represented by an attorney.  Also employment contracts both for the employment offer and termination may provide a legal venue of state law or FINRA rather than federal law with lawsuits in the United States District Courts.  The employer may attempt limitations and violations of your federal disability rights. 

An inherent conflict exists between employees and employers with disability leave.  Employers cite a "poor performance" as the reason for a disability termination, but an employee who is out of work on a disability is obviously not performing or working at all.  In theory based on disability discrimination law, the performance should be evaluated without consideration of the sick days or impact of the disability. 

DO-IT-YOURSELF & PRO-SE PLAINTIFFS

If you represent yourself (also called a Pro-Se Plaintiff), then the basic steps follow.  If you believe that your employer discriminated against your disability, then you must file a complaint with the EEOC in a timely fashion which is 180 or 300 days depending on the state. [ http://www.eeoc.gov/employees/howtofile.cfm ]  The EEOC is extremely helpful with investigations and mediation of discrimination complaints; however, if your employer will not settle your complaint, then request a Right to Sue letter from the EEOC.  You must file your lawsuit in the federal court for your district within 90 days, and you must include the Right to Sue letter with your complaint.  Otherwise the court can dismiss your complaint because you did not "exhaust administrative remedies" which is legal jargon for filing an EEOC complaint and receiving a Right to Sue letter from the EEOC.

In contrast if your employer violated your FMLA rights, you may contact the Department of Labor or file a lawsuit immediately in federal court.  FMLA does not require a Department of Labor investigation for a lawsuit about a FMLA violation.

Some district courts have a Pro-Se office which provides common legal forms and basic help with your case.  The Southern District of New York contains samples forms on its website [ http://www.nysd.uscourts.gov/forms.php ] including summons, complaint template, motions and reply to motions, etc.  Also the Pro-Se manual explains these forms.  If your employer refuses a settlement and the case proceeds towards a trial, then the Pro-Se trial manual explains the basics of the trial. 

[The opinions expressed in this blog are solely those ideas of the author.  The author does not claim an endorsement by, or affiliation with, Barclays Capital or any attorney.  This blog promotes the public good through a discussion about disability for full-time employees and the legal protection of disability rights. ]