Can You Be Fired While On Long-Term Disability?

Long-term disability can be confusing. The disability payments, insurance filings, doctor visits and everything that goes along with it. Eventually, you’ll be ready to go back to work.

But will your job still be there?

It Can Happen

getting fired while on long-term disability

Your employer can’t fire you just because you are on long-term disability, or because of your disability. But your employer can fire you while you’re out for reasons besides disability. There are laws to protect you in the event that you are disabled, and make sure you can go back to your job when you’re no longer disabled or recovered enough to return to work. The Herren Law Firm has helped over 4,000 Houstonians work through the maze of long-term disability. Let’s look at how the law protects you.

Family Medical Leave Act (FMLA)

The FMLA is a federal law that applies to companies with more than 50 employees (small businesses are generally exempted) and you must live within 75 miles of your company. Your company is required to give you 24 weeks of unpaid leave for things like physical or mental illness (yours or a family member), having a baby, etc. You must request FMLA leave according to your company’s policies, or you could be terminated for not notifying your employer that you need FMLA leave.

If you’ve properly requested FMLA leave, your employer must a) give you back the position you left, or b) give you a similar position, if you’re still able to do the same job you did before.

Americans with Disabilities Act (ADA)

The ADA is another federal law that applies to businesses with 15 or more employees. The ADA defines a disability as “a physical or mental impairment that substantially limits a major life activity.” If you meet this definition, you may be able to extend long-term disability after your FMLA time runs out. Your employer must offer reasonable accommodations after you notify them of your need. This can include flexible scheduling, wheelchair access, Braille signage, or even granting additional ADA leave.

Reasonable accommodation should not cause your employer an “undue hardship,” and your employer will determine if the accommodations will be enough for you to do your job. Negotiations may be necessary, and your employer may request that you try a number of different accommodations to see which ones work. If none are available, or they are unable to accommodate you to return to work, the company can legally fire you.

Business Changes

Your company may undergo a reorganization while you are out on disability. If this happens, and your job is eliminated, you can be terminated while you’re on leave. The company may not be able to keep your job open for an extended period of time due to business needs, and may be forced to hire someone else to do your job in your absence, whether temporarily or permanently.

You can be Fired at Any Time

Most employees are considered “at-will,” meaning that unless you have an employment contract/guarantee in writing and in place, you can be fired for nearly any reason at any time, or for no reason at all, unless that reason is illegal, i.e., discrimination, a medical condition, etc. It’s important to keep records of your requests for leave and accommodations under FMLA and ADA, as well as other important employment-related paperwork you may need later to prove your case. If you feel you’ve been wrongfully terminated, contact the Herren Law Firm for a free consultation.

If you were fired for poor performance, excessive absenteeism or another reason that an employer would normally fire someone for, then your employer can fire you legally. Under these circumstances, you can be fired during the long-term disability leave or when it ends.

Your employer can also legally fire you if:

• You do not return to work after using all of your sick/vacation time
• After FMLA leave, (or fail to declare it before leaving) after your employer has provided reasonable accommodations
• Can’t do the job despite the offered accommodations

Don’t Do It Alone!

We’ve helped over 4,000 Houstonians with disability related legal issues, and we’re ready to help you with yours. For a free consultation with attorney Bill Herren, call us today at (713) 682-8194 if you need legal help while you’re on long-term disability.

Don’t wait—it might be too late.

What’s the Difference Between Long-Term Disability and Short-Term Disability?

Have you just started a new job, and heard a lot of different terms in orientation about “disability?” Are you faced with the possibility of being on disability, and don’t understand everything? At the Herren Law Firm, we understand the process of disability insurance and filings, and can help when the time comes.

know the difference between long and short term disability

What is Disability Insurance?

There are two types of disabilities, and disability insurance. It’s important to know the difference between the two. Both long-term disability (LTD) and short-term disability (STD) are separate insurance policies that serve as a replacement for your regular income in the event you are disabled. Disability insurance pays you when you are unable to work due to an illness or injury, regardless of the cause. It also covers gaps when your sick/vacation time are used up, and may keep you from having to dip into savings and retirement funds to pay your bills.

Both types of insurance are separate from health insurance, which only covers medical expenses. Disability insurance is also not the same as Worker’s Compensation, which is issued through your employer and only for work-related or workplace injuries suffered on the job.

Short Term Disability

The term means just that—usually 30 to 120 days, and starts paying within a few weeks. Short term is for things like a broken leg, maternity leave, or other limited convalescence.  If you’ll be going back to work in a few weeks or a few months, this policy pays you for the time that you’re unable to work. STD is only available through your employer. If your employer doesn’t offer it, you will have to use your sick time, vacation time and savings/line of credit to cover your expenses until you return to work. (California, Hawaii, New Jersey, New York and Rhode Island may require your employer to offer this coverage.)

Long-Term Disability

Long-term disability is used when you will be out of work for a longer period. LTD starts after you’ve exhausted sick/vacation time and your short-term disability policy ends, and takes longer to start paying. An emergency fund can bridge the gap between the end of the short-term policy and the beginning of the long-term policy, although, ideally, it should start where the STD ends.

Long-term” doesn’t always mean a permanent disability. It just indicates a medical condition that prevents you from working. The average LTD claim is for 3 years, although some do go on longer. If you don’t have three or more years of savings to cover the loss of income, long-term disability covers some of your income so you can pay your regular bills.

If you’re considering applying for disability through Social Security (SSDI), know that getting it can take a year or more, is difficult to get and approval is not guaranteed. The Herren Law Firm has helped over 4,000 people file claims and suits they needed for disabilities.

What LTD Covers

An LTD policy pays about 60% of your regular income. If you buy your own long-term disability policy and pay your premiums with after-tax dollars, the income from the policy is tax-free. That means with a $100,000 yearly salary, you’ll be paid $60,000 year, tax free.

Employer Or Self Pay?

Most people have long-term disability insurance through their employer, but you can also purchase a policy individually. It is more expensive, but an LTD also pays more, and longer, depending on the policy you chose. When considering cost and affordability, it may be time to do a financial housecleaning and see what you can eliminate from your budget in order to cover an LTD policy. What’s more important—something that doesn’t create value, or something that can save you from bankruptcy if you’re unable to work for a long time?

The length of the payments depends on your LTD policy. Since the average disability is three years, you can purchase a policy that pays as long as five years—or until you retire. Some policies will cover you until age 67, when you can start receiving Social Security. Doctors, nurses and others that use their fine motor skills benefit from this kind of policy, since it guarantees income if they are disabled by an illness.

Need help?

Having trouble with an insurer? Call the Herren Law Office today at (713) 682-8194. We’ll give you a free consultation, and work on a contingency fee basis to help you get what you paid for. We’ve been helping people for 17 years, and would be happy to help you too.

How long does it take for a veteran’s claim to be processed? (Video)

Transcript:

A veteran’s claim process is very back-logged. Some of the claims can take years to process through the appeals process. I recently settled a claim that had been pending for five years. This is an unacceptable situation and should be addressed by congress.

How long does a long term disability claim take to be processed? (Video)

Transcript:

A long term disability claim can be processed either in a short time or it could take one or two years. The reason is if the claim is allowed at the initial application stage, or perhaps at the administrative appeals stage, then the amount of time is a matter of months. However, if the claim was denied at the administrative appeals stage, then the claim has to be taken to court. We have to wait on the court’s docket at that point in time, so it could take a year or even more to process the claim all the way through court.

How much money can I expect to receive if my claim is approved? (Video)

Transcript:

The amount of the benefit depends on the salary. Typically, the benefit is a percentage of the salary, for example, 60% (I’ve seen some policies which allow for 70% of the salary). It’s always some percentage of the salary. It continues during the entire period of disability up to a certain age. Typically, the age that the benefit terminates is 65. Sometimes the benefit continues until what’s called “the Social Security retirement age,” which could be more than 65, 66, or even 67 years-of-age.

How Federal Debts May Affect Your SSD Paycheck

Now that you’ve gone through the Social Security disability process and started receiving your monthly benefits, you are free to use the money however you’d like. In most cases, the payments are deposited into your bank account, put onto a prepaid card, or sent to your home by check.

How Federal Debts Affect Your SSD Paycheck | Houston SSD Attorney

Under federal law, creditors cannot garnish or freeze this money from your bank account or prepaid card, but there are some important exceptions that you need to be aware of. For instance, your SSD paycheck might not be protected from federal debts, such as unpaid taxes and some federal student loans. If your SSD paychecks have been frozen, garnished, reduced, or simply touched by an outside creditor, including the federal government, you should consult an experienced SSD attorney right here in Houston.

By calling Herren Law, we’ll look over your situation and determine if you have any legal options. For a free, no-obligation consultation with our Houston-based firm, call us today at (800) 529-7707.

Protections for Social Security Disability Benefits

As mentioned above, creditors cannot garnish your Social Security disability benefits. This is true even after a creditor sues you for the debt and wins the court order for your bank or credit union to turn over money from your account or prepaid card. In fact, the U.S. Department of Treasury requires banks to automatically protect some of your federal benefits from being frozen or garnished.

In general, the benefits that your bank automatically protects include:

  • Social Security
  • Supplemental Security Income
  • Veterans
  • Federal Railroad retirement, unemployment, and sickness
  • Civil Service Retirement System
  • Federal Employee Retirement System

By having your Social Security benefits automatically deposited into your bank account, the bank is required to protect at least two months of benefits. For instance, if you receive $1,000 in monthly benefits, then the bank protects up to $2,000 or, if you have less than that, the bank will protect the money remaining in your account.

If your account has more than two months of benefits in your account, your bank may be able to freeze or garnish the wages under a court order. However, if that extra garnished money is exempt as Social Security disability benefits, you can object to the garnishment in courts to have your funds released.

Protections on Prepaid Cards

If you use a prepaid card to receive federal benefits, whether SSD benefits, SSI benefits, and VA disability benefits, the benefits you receive are also protected similar to how banks protect your benefits.

Exceptions to Automatic Protections

There are some exceptions to the automatic protections for federal benefits deposited in your bank account or prepaid card. According to Section 207 of the Social Security Act (42 U.S.C. 407), your Social Security benefits are protected from any creditors except for the federal government when the following apply:

  • You owe unpaid federal taxes. In this example, and according to the Federal Payment Levy Program (FPLP), the IRS can take 15 percent of your monthly Social Security disability insurance payments to pay for unpaid federal taxes.
    • Keep in mind that the IRS cannot simply take 15 percent of your benefits. First, the IRS will send you a final notice which states that you have 30 days to pay your tax or work out a payment agreement. Once these 30 days pass, the IRS can usually begin withholding this money until the debts are paid.
  • You have unpaid child support or alimony. Up to 60 percent of your SSD benefits can be withheld for unpaid child support or alimony.
    • If you have another child or spouse that you support, federal agencies can only withhold 50 percent of your SSD benefits.
    • If your payments are more than 12 weeks late, federal agencies can reduce your SSD benefits by 5 percent until the support or alimony is paid, unless you can prove that this would cause undue hardship.
  • You have non-tax debts owed to the federal government. The most common non-tax debts owed to the government are federally guaranteed student loans, but this can also include food stamp overpayments and federal mortgage loans.

What to Do If Your Bank Account is Garnished or Frozen

Before creditors freeze or garnish any money in your bank account, you’ll first receive a notice of garnishment explaining the court procedures for claiming any exceptions from garnishment. Due to the automatic protections with having your SSD benefits directly deposited into your bank account, or onto a prepaid card, you’ll have at least two months of SSD benefits protected. However, if you receive your SSD benefits as a check and deposit the money into the account, or if you transfer the money from one account to another, then your bank might not see that the deposited money is from a federal source and won’t be able to protect it.

If you have a legitimate objection to the garnishment, you can file an MC-49 (Objections to Garnishment) form with your local court. On this form, you can explain your objections to the garnishment of your assets on legal grounds.

Call Herren Law for a Free Consultation

Under certain and specific circumstances, the federal government can reduce your Social Security disability benefits. However, if creditors have garnished your SSD benefits, then you need to consult an experienced Houston SSD attorney. At Herren Law, we’ve helped many people throughout Houston with their SSD benefits, from providing legal counsel for the application process to protecting your wages from garnishment. For a free consultation with attorney Bill Herren, call us today at (713) 682-8194.

What are the steps involved in filing a long term disability claim? (Video)

Transcript:

The long term disability claim should first be filed with the insurance company. They will process the claim and make their, what they call the initial determination. At that point, if the claim is denied the insurance company is allowed under the ERISA Statue to review the claim at least one time, but not more than twice. They have 45 days to review the claim once the appeal is final. The individual only has 6 months, or 180 days, to file the appeal. Folks that are applying for long term disability should be well aware of the appeal period. If one misses that appeal period, then the claim will never be revised.

How can a veteran pay his medical bills while the claim is being processed? (Video)

Transcript:

Well that’s a very good question. Many veterans are eligible for medical care even if they aren’t eligible for cash awards. I want veterans to remember that they might also have a claim for Social Security disability. If the veteran is unable to work and has Social Security credits, then he should think about applying for Social Security disability as well as for his veteran benefits.

Why is it so difficult for a veteran to obtain the benefits that he or she deserves? (Video)

Transcript:

There are numerous reasons for that. First of all, there’s the back log; secondly, there’s incompetence within the Veteran’s Administration; there’s resistance to change; there is an antiquated filing system in place; and on and on. There are numerous reasons for that. The best advice for veterans is to be very patient.

Military Sexual Trauma, PTSD, and Your Houston VA Disability Benefits Case

Unfortunately, sexual assault does occur in the military, and according to the Department of Veterans Affairs (VA), sexual assault is classified as military sexual traumas (MST). Furthermore, according to Title 38 U.S. Code 1720D, MST is a “psychological trauma, which in the judgment of a VA mental health professional, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty, active duty for training, or inactive duty training.”

Military Sexual Trauma, PTSD, and Your Houston VA Benefits Case

National data suggests that 1 in 4 women and 1 in 100 men experience sexual trauma while serving in the military, and although PTSD is commonly associated with military sexual trauma (MST), it is not the only diagnosis that can result from MST. As such, if you are a U.S. Veteran living in Houston or the Houston area, and you want to receive your rightfully owned VA disability benefits due to MST or PTSD, then it’s critical to contact a Houston VA disability benefits attorney as soon as possible.

At Herren Law in Houston, we’ve helped numerous Veterans with their VA applications, appeals, and other issues regarding disability benefits. For representation with one of the leading VA benefits attorneys in Houston, make sure to call Herren Law today at (800) 529-7707. We work on a contingency basis, and initial consultations are always free.

Overview of Military Sexual Trauma and PTSD

First of all, it’s essential to note that military sexual trauma is not a medical diagnosis. Because MST is a traumatic event, there are multiple reactions that a person can have. PTSD may be the most common diagnosis associated with MST, but other diagnoses often include depression, mood disorders, and substance abuse disorders.

Keep in mind that not every individual will have the same reaction. Some reactions to military sexual trauma can include:

  • Strong emotions, including depression, sudden and emotional responses to things, and feeling angry or irritated all of the time
  • Numb feelings, where you feel emotionally flat or have difficulties experiencing emotions such as happiness or love
  • Trouble falling asleep
  • Difficulties with attention, memory, and concentration
  • Problems with alcohol or drugs
  • Difficulties with things that may remind the Veteran of the traumatic sexual experience
  • Difficulties with relationships, such as feeling disconnected or isolated from others
  • Physical health problems

Military Sexual Trauma and the VA

Military sexual trauma is a very serious issue, and, fortunately, the VA has responded to MST claims and every VA health care facility has a designated MST Coordinator. The MST Coordinator often acts as the contact person for any MST-related issues, and the Coordinator can help you find and access various VA services and programs. Additionally, because MST is massively underreported (due to stigma and other reasons), VA health care providers often must ask a Veteran if he/she experienced military sexual trauma. For more information on MST Coordinators, and finding these individuals near, please refer to the VA’s official list of Military Sexual Trauma Coordinators.

When applying for disability compensation with the VA, you won’t receive compensation for MST itself, but for the conditions that resulted from the MST.

Evidence to Support a Military Sexual Trauma Claim

No matter the severity of your traumatizing event, the VA still requires documentation and evidence to validate your claim and provide regular VA disability benefits. Some common and effective pieces of evidence come from the Department of Defense forms used to report incidents of sexual assault or harassment, as well as investigative reports, while you were in the military. However, because sexual trauma isn’t often reported, the VA has “relaxed the evidentiary requirements and looks for ‘markers’ (i.e., signs, events, or circumstances) that provide some indication that the traumatic event happened.”

This evidence can include:

  • Records from law enforcement agencies, rape crisis centers, hospitals, mental health counseling centers, and others
  • Pregnancy tests or test results for STDs
  • Statements from family members, fellow Servicemembers and Veterans, counselors, clergy members, and others
  • Requests for transfer while the Veteran was in the military (reasonably attributed to the sexual trauma, assault, or harassment)
  • Deterioration in work performance
  • Substance abuse
  • Unexplained economic or social behavior
  • Relationship issues
  • Sexual dysfunction

Due to the evidentiary requirements, it’s absolutely critical to document as much as you can. Furthermore, it’s important to note that increases in MST awareness led the VA to offer special training for all VA regional office personnel who process MST-related claims and the mental health clinicians conducting the examinations related to these claims. This occurred in 2011, and if your past MST claim with the VA was denied before this date, you can request a re-evaluation from your local VA regional office.

For a Free Consultation, Call Herren Law in Houston Today

Military sexual trauma is a very serious incident that can have lifelong consequences for the victim. As such, if you were the victim of MST, sexual assault, or sexual harassment while you were in active service with the military, and you are continuing to suffer, make sure to not hesitate any longer and call Houston VA disability attorney William Herren today. We work on a contingency basis, meaning that you won’t pay a cent unless we win your case. Initial consultations are also free, so call Herren Law in Houston at (800) 529-7707 or (713) 682-8194 today.