Lebau & Neuworth Wins Disability Benefits For Persons With Migraines

The law firm of Lebau & Neuworth recently obtained long-term disability benefits on behalf of two clients who suffered from migraines. Both clients, one who worked for Maryland hospital for many years and the other at a D.C. tech company for just a few years, initially had their claims denied before seeking our representation.

Representing these clients and many others in employment and disability-benefit law matters, Lebau & Neuworth knows how difficult it is for a migraine sufferer and his/her family to cope with this disorder.

The two primary sources of disability benefits that may be available to them are from Social Security and from disability benefit insurance policies (through an employer or a privately owned policy).

Social Security Disability Benefits

(From the National Headache Foundation)

If you experience chronic migraine that makes it difficult or impossible for you to work, you can file a claim for Social Security disability (SSD) benefits. You will need to provide medical documentation of your illness in order for your claim to be approved. This medical documentation will help support that you are unable to work for at least 12 months, which is a requirement for applying for disability.

A migraine attack can incapacitate someone for days. The light and sound sensitivity, as well as the physical toll that migraine disease takes on the body, can mean that the person needs days of recovery time. But in order to be approved for disability benefits due to migraine disease, there needs to be an underlying medical condition or a person needs to ask for a Medical Vocational Allowance.

All of the conditions that qualify for Social Security disability benefits are listed in the Social Security Administration’s Blue Book, and there is no official listing for migraine disease. However, migraine can be symptoms of other health problems that are listed in the Blue Book. If you experience migraine due to any of these conditions you can be approved for disability benefits based on Blue Book listing for these conditions:

High Blood Pressure
Stroke
Fibromyalgia
PTSD
Depression
Heart Disease
Anxiety
Epilepsy

You will need to provide medical documentation such as a diagnosis, treatment plans, test results, medical bills and other documents to prove that you cannot work because of your medical condition.

Disability Insurance Benefits

Short-term disability is offered by many employers, and the coverage length and amount of benefits are set by the terms of the plan.

Long-term disability benefit insurance is also offered by many employers and covers a percentage of your salary. Again, the plan terms set forth the applicable amount of the benefits, length of the benefits and limitations, if any.

Several insures also offer private disability insurance that you can use to supplement an employer-provided disability policy or to be your sole source of disability benefits.

There are no precise guidelines you must meet to qualify for disability due to migraines. Generally, you will need to prove to the insurance company that your disability and related symptoms prevent you from perform your job. You will have to show that migranes cause significant restrictions such as the inability to concentrate, communicate and interact with others, and additional limitation could be sensitivity to noise and light. Further, side effects from medication can also be considered as causing significant work restrictions.

Our Advice: Get A Good Lawyer

Lebau & Neuworth has seen too many people not get the employment benefits they deserve due to not getting a good lawyer soon enough. There are many pitfalls in trying to deal with an insurance company and the SSD bureaucracy if you do not use a lawyer – and a lawyer who is an expert in disability benefits.

If we take your case, we will work closely with you to develop and prove the best possible case. We will work with you to develop the record and history of your condition, complete all necessary forms, and coordinate communications with your treaters.

Even if you have been denied benefits in the past, we still may be able to help since you may have the right to file an appeal. Getting expert help is often the difference between being denied and being approved for benefits, so contact Lebau & Neuworth at (410) 296-3030 or lebauneuworth.com/contact-us.

Job Coach, Other Workplace Requests Are Reasonable Accommodations

An employer recently failed to get a court to rule that a job coach can never be a reasonable accommodation under the Americans with Disabilities Act.

The ADA mandates that disabled workers be provided reasonable accommodations to perform the essential job functions of their job. There are just a few exceptions to this rule, such as the undue hardship or direct threat defenses.

Employers have long argued that providing a disabled worker with a job cannot be a reasonable accommodation, citing costs and liability issues.

In EEOC v. Walmart, the Seventh Circuit Court of Appeals ruled that there must be a case-by-case approach to determine if a requested accommodation is reasonable. The Court stated, “To be sure, employers need not pay twice for the same work” if another employee is performing the essential functions of the job for the disabled employee. But the Court added that did not apply in that case since Medicaid, and not Walmart, was paying for the cost of the accommodation.

This is good news for disabled workers and drives home the point that an employer has a significant obligation in providing reasonable accommodations.

If you are being denied a reasonable accommodation at your workplace, Lebau & Neuworth may be able to help. Contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Amazon’s Broken Leave System Misdelivers for Employees

Lebau & Neuworth lawyers have represented numerous employees of Amazon – which has huge warehouses and delivery centers in Maryland – in various disputes, including claims for overtime wages, wrongful termination, discrimination, harassment and disability benefits.

A recent New York Times article detailed the ongoing mess that is Amazon’s employee leave system. The world’s largest retailer can deliver packages to customer’s in under 24 hours, but when employees need leave from work, they are forced to go through a complex web of apps, software, and phone trees to request the leave. If the leave request is approved, employees then face numerous other difficulties, including the software marking employees on leave as no-shows, losing doctor’s notes, and issues reaching case managers.

Amazon’s leave system is not only a huge inconvenience for its employees, but it could potentially be violating laws such as the Family Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA). Amazon’s broken leave system could expose it to liability for violations of the FMLA or ADA. For example, if leave is denied because an employee’s doctor note is lost, that may be a violation of the employee’s rights under the FMLA and/or ADA; or if an employee who is on approved FMLA or ADA leave is terminated because Amazon’s leave system marked him or her as “no-show,” that could be a violation of the employee’s rights under the FMLA and/or ADA.

The FMLA is a federal law that entitles eligible employees to 12 workweeks of unpaid leave in a 12-month period. FMLA leave can be given for:

the birth of a child and to care for the newborn child within one year of birth;
the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
to care for the employee’s spouse, child, or parent who has a serious health condition;
a serious health condition that makes the employee unable to perform the essential functions of his or her job; and
any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

The FMLA covers employers, such as Amazon, who have 50 or more employees in 20 or more workweeks in a year. Employees may be eligible for FMLA if they work for a covered employer for at least 12 months; have worked at least 1,250 hours during the 12 months before the leave; and work where the employer has at least 50 employees within 75 miles.

Amazon’s point system that we have come across in Maryland, when not properly administered, can violate the FMLA.

The FMLA prohibits Amazon from disciplining any employee who has an FMLA-protected absence. This means that an employee should not receive an unfavorable evaluation or points when out on FMLA leave. Also, Amazon is required to return the employee to a substantially equivalent position (same pay and benefits) when returning from FMLA leave.

The ADA is the federal law that makes it illegal for employers with 15 or more employees, like Amazon, from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA also requires employers to give reasonable accommodations to employees with disabilities, which can include leave work for limited periods of time even when the employee has no more leave left or is not yet eligible for FMLA leave.

Importantly, in Montgomery County, Maryland, Amazon has to comply with the county’s paid sick leave law. This is in addition to complying with the FMLA and ADA.

If you have questions about FMLA leave or ADA accommodations, Lebau & Neuworth may be able to help. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

CORONAVIRUS PANDEMIC: COVID 19 Created Additional Ways to Prove Disability in Various Benefits Cases

On July 19, 2021, Lebau & Neuworth partner attorney Richard Neuworth made a presentation on the issues of COVID 19 and Social Security Disability, Workers Compensation and Long-Term Disability to the viewers of Lawline. The program was designed to show that COVID 19 produced a new paradigm that created additional ways to prove disability in Social Security Disability, Workers Compensation and Long-Term disability benefits cases.

Through the program, Richard provided particular emphasis concerning long-haul syndrome and how that increases the ways that claimants can obtain both a source of income and medical coverage for COVID or fears of COVID that prevent individuals from returning to work or their past relevant program.

Richard also offered other information concerning sources that examined what long-haul syndrome is and how it affects individuals depending on age and amount of infection; and other information concerning how to prove disability.

To view all of the information presented by Richard, click here.

The attorneys at Lebau & Neuworth are highly experienced in Worker Disability issues. If you need any advice, assistance and representation for COVID-related disability benefits, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Pregnancy Complications as a Disability & Telecommuting as a Reasonable Accommodation

The law now dictates that pregnancy, by itself, does not constitute a disability protected by the Americans with Disabilities Act (ADA). However, as shown in the recent case of Kande v. Dimensions Health Corp., an employee’s pregnancy-related complications can rise to the level of a protected disability under the ADA. The Maryland federal court point-blank stated: “[A]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.” The Court, however, limited its ruling, adding that “only abnormal complications may qualify as impairments under the ADA.”

In this case, the employee experienced a number of conditions that increased the risk of suffering an abruption (in which the placenta detaches from the cervix, potentially leading to termination of the pregnancy). She also provided her doctor’s testimony that reduced activity and resting at home was necessary for the pregnancy, which the Court viewed as strong evidence of protected impairment.

The Maryland federal court was seemingly repulsed by the employer’s argument that the fact that the employee had a successful pregnancy was evidence that she had no disability. The Court stated: “Taking into account whether a plaintiff actually worked without incident after the denial of an accommodation would allow defendants to deny coverage to employees and avoid liability so long as the employees continued to work and did not actually suffer the health consequences for which they are at risk. This cannot be the law.”

After determining that the employee’s pregnancy complications amounted to a protected ADA disability, the Court then had to decide whether the employer failed to reasonably accommodate by refusing to let her work from home – i.e., telecommute. The Court held that the employer had failed to accommodate based on three facts:

First, the Court held that the employee’s accommodation request to work from home was a just need to avoid the commute to and from her office. Rather, the Court found that not driving was required through her doctor’s instructions for rest and avoidance of sitting for long periods.
Second, the Court noted that working from home was medically necessary, stating that “it was necessary for Plaintiff to rest at home and limit her activity due to her disability, and not a matter of mere preference.”
Third, the Court found that the employee had presented sufficient evidence that she could perform all the essential functions of the job from home. The Court rejected the employer’s attempts to find tasks that required the employee to be at the office, when they were not essential functions of her job.

If you would like want more information regarding pregnancy, disability discrimination or the duty of an employer to accommodate (including by allowing a worker to telecommute), the attorneys at Lebau & Neuworth are well-experienced with these types of cases. Please contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Disabled Workers Score Big In ADA Victory during Disability Awareness Month

October is Disability Awareness Month, which appropriately coincides with a recent Maryland federal court decision that cements the rights of disabled workers and the obligations on an employer to provide reasonable accommodation. U.S. District Court Judge Hollander, in a 65-page opinion in EEOC v. M&T Bank, CV ELH-16-3180 (October 2, 2019), made clear that the ADA is to be broadly construed by requiring extended leave and reassignment without competition as reasonable accommodations.

The Facts

The employee, a branch manager who rose from the ranks of being a teller, had long been diagnosed with cervical insufficiency, which resulted in past miscarriages. After learning that she was pregnant, the manager informed M&T that she needed leave for surgery to assist her in maintaining her pregnancy and then bedrest through childbirth – at least for a seven-month period.

Although the manager exhausted her FMLA leave and her former position was filled, she was not terminated. Per M&T policies, she was terminated only 30 days after she was cleared to return work when she had not been able to find another position. Then, she was given an additional 60 days after that to apply and compete for other M&T jobs as a current employee. However, the manager was not hired for any of the, at least, 12 jobs she applied for.

The EEOC filed suit against M&T, asserting that it violated the ADA by making the manager compete with other employees for job openings. The EEOC argued that the manager should have been reassigned, without competition.

The Preliminary Matters

M&T asserted various arguments trying to get the Maryland federal court to dismiss the claim before it had to resolve this issue. The Bank lost on all of them, and the Court’s analysis of them illustrates the ADA’s expansive scope.

*Record of Being Disabled – Specific Notice Not Required

M&T claimed that the fired manager was not protected by the ADA because she was neither disabled nor had a record of being disabled. The Court disposed of that argument, finding that, it did not have to determine whether the manager was disabled or not, because when she was terminated, she clearly had a record of being disabled. Moreover, the Court found that the manager gave M&T sufficient knowledge of her disability because she told her boss that she had miscarriages in the past, and required a procedure to carry her baby to term. The Court cited ADA regulations and case law that provide that an individual may have a “record of” being disabled and thus be protected under the “record of” prong of the statute, even if a covered entity does not specifically know details about the record. A worker is not required to give medical documentation to an employer to trigger ADA protections.

*Failure to Accommodate – Intent Not Required

Next, M&T argued it could not have violated the ADA because it had no intent to discriminate against the manager. Rather, its policies required that she be terminated when she could not find another job within the specified time period. This argument too was not successful. The Court held that, because the manager was asserting a failure to accommodate claim, she did not have to show that the employer acted with a discriminatory motive. The Court stated that the “denial of a reasonable accommodation alone is discrimination.”

*Failure To Accommodate – Required Even If Not Currently Disabled

Then, M&T argued that the manager failed to make a failure to accommodate claim because she was fully recovered when terminated and had no medical need for an accommodation. M&T lost here too, with the Court referring to the ADA regulation which provides that the duty to accommodate covers an employee if an accommodation is needed and relates to the past disability. The Court noted that the accommodation for reassignment was both needed and the immediate result of her disability-induced leave.

The Big Take-Aways

Judge Hollander, relying on governing regulations and applicable case law set forth a clear marker that an employer must consider extended leave and reassignment to another position when returning from leave as reasonable accommodations.

*Extended Leave As Reasonable Accommodation

Judge Hollander boldly rejected the Seventh Circuit Court of Appeals’ recent ruling that extended leave was a per se unreasonable accommodation, relying on Fourth Circuit precedent that a leave request is not unreasonable so long as it, “(a) is for a limited, finite period of time; (b) consists of accrued paid leave or unpaid leave; and (c) is shown to be likely to achieve a level of success that will enable the individual to perform the essential functions of the job in question.” The manager’s request met that criteria because (a) she told the Bank she could return to work without restrictions after childbirth; (b) she was on paid and/or unpaid leave; and (c) there was no dispute she could perform the essential functions of the manager job once returned to the job.

Further, the Court found that the duty to accommodate did not end when M&T filled the manager’s former position. M&T was required to consider additional leave as a reasonable accommodation because the duty to provide accommodation continues and does not end with just one attempt.

Because M&T did not invoke the “undue hardship” defense, the Court did not have to address that issue. However, the Court noted that M&T’s generous leave policy would undermine any hardship defense.

*Reassignment Without Competition As Reasonable Accommodation

After deciding that extended leave can be a reasonable accommodation, the Court was then called upon to decide whether M&T was required to reassign the manager to another position without having to compete with other internal candidates. M&T argued that requiring reassignment without competition was tantamount to unlawful affirmative action, citing several cases. The Court disagreed, first relying on the “plain reading” of the ADA which, in relevant part, states that reasonable accommodation includes, “reassignment to a vacant position.” 29 U.S.C. § 12111(9). Therefore, the Court concluded that, under the ADA’s plain meaning, when there is a “vacant position” and a disabled employee is “qualified” for that position, reassignment is a “reasonable accommodation”.

Second, the Court held that the ADA imposes no requirement that the disabled employee seeking reassignment has to be the “most qualified”. The Court insightfully remarked that a best-qualified hurdle to reassignment as an accommodation would render reassignment to “second class” status, observing that no other possible accommodation, such as a modified work schedule, allows a better-qualified worker to displace the disabled employee seeking the accommodation.

If you are disabled and feel your rights may have been violated by an employer because of your disability, the attorneys at Lebau & Neuworth are highly experienced with such cases and may be able to assist you. Contact us at (410) 296-3030 or lebauneuworth.com/contact-us.