DISABILITY BENEFITS AVAILABLE FROM THE FEDERAL GOVERNMENT

Social Security Disability [“SSD”]

When you work, about 7.5 cents from each dollar that you earn is withheld from you and is paid into the Social Security system. Your employer also pays into the Social Security system 7.5 cents for each dollar that you earn.

Most collect a Social Security benefit when they reach their full retirement age (no earlier than 65 for some; not later than 67 for others). Some can collect their Social Security retirement benefit before their full retirement age and without any reduction. These folks collect what is commonly known as Social Security Disability [“SSD”].

You can collect SSD if: (1) you have been (or expect to be) unable to work due to disability for at least one year; (2) you and your employer have paid enough into the Social Security system so that you are eligible to collect a retirement benefit; and (3) you and your employer recently have paid enough into the Social Security system.

If you are approved for SSD benefits, you (and your minor children) can collect a monthly benefit. The amount of your SSD benefit is determined by the amount of Social Security taxes that you and your employer have paid into the Social Security system. You can be a billionaire and still collect SSD benefits. Your assets and “non-work” income will not affect your entitlement to SSD.

Practical Advice

Apply for SSD benefits by calling the Social Security Administration [“SSA”] at (800) 772-1213. The SSA website is very helpful (http://www.ssa.gov).

Supplemental Security Income [“SSI”]

Children and other adults who have NOT worked and paid Social Security taxes may be eligible for Supplemental Security Income [“SSI”] benefits.

You can collect SSI if: (1) you have been (or expect to be) unable to work due to disability for at least one year; and (2) you meet the “very modest” financial resource rules. Stated simply, this means that you have to be “poor enough” to qualify for SSI no matter how serious your medical condition.

If you are approved for SSI benefits, you can collect a monthly benefit. The amount of your SSI benefit is determined by the State where you live at the time that you are approved for benefits and if you have dependents. In 2016, the monthly SSI benefit for those who live alone in New York is $820.00.

Practical Advice

Apply for SSI benefits by calling the Social Security Administration [“SSA”] at (800) 772-1213. The SSA website is very helpful (http://www.ssa.gov).

DISABILITY BENEFITS AVAILABLE THROUGH EMPLOYMENT

Mandatory Short Term Disability

New York employers are required to provide short term disability [“STD”] insurance coverage. If you: (1) were employed for at least four weeks at the time you became disabled; (2) became disabled within four weeks after leaving your last job; or (3) were collecting unemployment insurance benefits at the time you became disabled, you may be eligible to collect STD benefits.

If eligible, you can collect a weekly benefit equal to 50% of your weekly wage or $170.00, whichever is LESS. There is a one week waiting period. You can collect STD benefits for up to 26 weeks. There are no associated medical benefits.

You can collect up to 26 weeks of unemployment insurance OR STD benefits. You CANNOT collect 26 weeks of BOTH types of benefits.

Practical Advice

Apply for these benefits as soon as possible. Complete the appropriate form and secure the required information from your treating physician.

If you were employed at the time you sustained your disability, you need to complete form DB 450. You can get that form at http://www.wcb.ny.gov/content/main/forms/db450.pdf

If you sustained a disability within four weeks after you left your last job, or if you were collecting unemployment insurance benefits at the time you sustained your disability, you need to complete form DB 300. You can get that form at http://www.wcb.ny.gov/content/main/forms/db300.pdf

A good explanation of the STD benefit law is found at:
http://www.wcb.ny.gov/content/main/offthejob/db-overview.jsp

Group Enhanced Short Term and Long Term Disability

If you were employed at the time you became disabled, you might be eligible for group “enhanced” short term disability benefits (which exceed the mandatory STD benefit discussed above). If your disability has lasted (or is expected to last) 26 weeks or more, you may be eligible for group long term disability [“LTD”] insurance benefits.

These benefits are provided pursuant to a written agreement which will often define important terms such as “disability.” Employers are NOT required to provide these benefits, however, many larger employers do so.

Practical Advice

Contact your employer immediately, get the appropriate claim form and complete it as soon as possible. Do NOT rely on oral representations by human resource/employee benefit staff who work for your employer. Request a copy of the disability benefits insurance policy/plan AND the Summary Plan Description (lay person’s description).

Disability Pension–Private Sector Employees

If you were employed at the time you became disabled, you might be able to draw your pension early and without a penalty (like SSD). Some private employers and labor unions offer disability pension benefits. These benefits are provided pursuant to a written agreement which will often define important terms such as “disability.”

Practical Advice

Contact your employer or union immediately, get the appropriate claim form and complete it as soon as possible. Many employers and labor unions will not provide a disability pension unless and until you are awarded SSD benefits.

Do not rely on oral representations by human resource/employee benefit staff who work for your employer or union. Request a copy of the pension plan and Summary Plan Description (lay person’s description).

Disability Pension–Public Sector Employees

If you worked in the public sector at the time you became disabled, you might be able to draw a disability retirement pension from one of the eight retirement systems for public employees in the State of New York. Three are statewide pension systems (Teachers; Police & Fire; State & Local Government workers).

There are different types of disability pension benefits including ordinary (non work related), accidental and performance of duty.

To qualify for ordinary disability pension benefits, you have to prove that you are “permanently incapacitated” from performing your particular job. To qualify for “performance of duty” disability pension benefits, you have to prove that you are “physically or mentally incapacitated for performance of gainful employment as the natural and proximate result of an accident not caused by [your] own willful negligence sustained in the performance of [your] duties.” It is VERY difficult to qualify for an “accidental” disability pension benefit under the language of the relevant statutes and judicial interpretations of that language.

Practical Advice

Contact your employer immediately, get the appropriate claim form and complete it as soon as possible.

Navigating the various retirement systems is very complex. Public sector labor union officials are usually good sources of information.

There are very short deadlines for taking action. There are many quirky notice provisions. Stated simply, there are many traps for the unwary.

DISABILITY BENEFITS YOU MAY HAVE PURCHASED INDIVIDUALLY

Private Long Term Disability [“LTD”]

You may have purchased a LTD insurance policy on your own or through a group (e.g., Chamber of Commerce).

Practical Advice

Contact your agent and/or the insurance company to get the appropriate claim form. These benefits are provided pursuant to a written agreement which will often define important terms such as “disability.”

Miscellaneous

By virtue of your disability, you may be eligible for certain additional benefits. For example, you may be entitled to defer or waive your obligation to: (1) pay life insurance policy premiums; and (2) make automobile, mortgage, credit card or other payments. These benefits are provided pursuant to a written agreement which will often define important terms such as “disability.”

Practical Advice

Examine all “important” papers (loan agreements, life insurance policies, etc.) for possible disability benefits.

Do not rely on oral representations by customer service representatives who work for credit card and similar companies. Request a copy of all relevant documents and read them. Get the appropriate claim form and complete it as soon as possible.

OTHER DISABILITY BENEFITS

Waiver of Student Loans

By virtue of your disability, you may be eligible to have a student loan deferred for a period of time or otherwise waived.

Practical Advice

Examine the student loan agreement.

Do not rely on oral representations by customer service representatives who work for student loan companies. Request a copy of all relevant documents and read them. Get the appropriate claim form and complete it as soon as possible.

Disability Benefits Through a Trade or Fraternal Association

By virtue of your membership in a trade or fraternal association, you may be eligible for certain types of disability benefits.

Practical Advice

Examine all relevant documents from the trade or fraternal organization.

Do not rely on oral representations by customer service representatives who work for the trade or fraternal organizations. Request a copy of all relevant documents and read them. Get the appropriate claim form and complete it as soon as possible.

HEALTH INSURANCE CONSIDERATIONS

Continuation through COBRA

If you lose your job because you are unable to work, you should be offered the opportunity to continue in your current health insurance plan for a period of not less than 18 months. You are required to pay the ENTIRE cost for this health insurance coverage. Moreover, your employer can charge you a two percent (2%) administration fee.

Practical Advice

Contact the appropriate representative of your employer and find out about how you can continue health insurance coverage and the related cost.

Consider whether there are less costly ways to have you covered by health insurance (e.g., becoming insured under the plan that covers your spouse or through a membership association).

Continuation through Employer Policy

Some employers will allow you to continue in your existing health insurance coverage (as if you were still employed) IF you are approved for Long Term Disability benefits or are eligible for a pension benefit.

Practical Advice

Contact the appropriate representative of your employer and find out about whether they have a policy that would allow you to continue in your existing health insurance coverage as if you were still employed.

Affordable Care Act (aka ObamaCare)

We encourage you to explore whether you are eligible for “affordable” health insurance coverage under a federal law known as the Affordable Care Act. Residents of New York can learn more by visiting http://nystateofhealth.ny.gov

There is an open enrollment period for this type of health insurance. If you lose employer provided health insurance because, for example, you were not able to return to work due to disability, you should be able to secure health insurance coverage in a 60 day “special enrollment period” even if the general enrollment period is over.

However, be careful about accepting continued health insurance coverage from your employer under COBRA. If you accept continued health insurance (including when the employer pays the COBRA cost), you might not be able to get heath insurance under the Affordable Care Act when the COBRA payments end if it is not in an open enrollment period.

Medicare

Medicare is the federal government provided health and hospital insurance program for people who collect Social Security retirement and SSD benefits.

As a general rule, there is a 24 month waiting period (measured from the first month that you are eligible to collect SSD benefits) before someone on SSD can participate in Medicare. Keep in mind that no one collects SSD for the first five full months that they are disabled. Thus, if Social Security found that you became disabled on November 11, 2015, you would NOT be eligible to participate in Medicare until May of 2018.

Practical Advice

You can learn more about Medicare by visiting their web site (www.medicare.gov). Lifespan, a local non-profit agency, has a team of experienced Medicare counselors who can help you make appropriate decisions about health insurance. You can learn more about Lifespan by visiting their web site (http://www.lifespan-roch.org/education/).

Medicaid & Other Needs-Based Programs

If you become eligible for SSI, you should be able to participate in Medicaid. Medicaid is a government provided health and hospital insurance program for people who collect SSI.

New York has a number of other helpful programs. Eligibility usually depends on family income and resources. Visit https://www.mybenefits.ny.gov/

EMPLOYMENT ISSUES

  1. New York is Employment- at-Will unless union or individual contract
  2. There are exceptions to Employment-at-Will, including obligation to accommodate
  3. To disclose or not to disclose . . . there are pros and cons
  4. You can preserve/protect your rights under federal and state law by filing a charge of discrimination with the United States Equal Employment Opportunity Commission WITHIN 300 DAYS FROM THE DATE OF THE EVENT YOU WANT TO CHALLENGE. You can reach them at 1-800-669-4000 or online at www.eeoc.gov
We wish you good health. Contact us if we can help you.