Many employees fail at work, not due to bad performance, but because they are struggling with a behavioral health condition that interferes with their ability to adequately perform their job. The COVID-19 pandemic has brought greater attention to mental health issues; and the statistics regarding depression, anxiety, attention deficit disorder, post-traumatic distress, and even substance use disorders show a rise in all of those conditions. Sometimes, these conditions have been chronic; and in other instances, they may have been triggered by events that occurred on the job. Job-related behavioral health impairments are beyond the scope of this blog other than to suggest that such conditions may form the basis of a workers’ compensation claim or employment discrimination claim, which should be investigated. Regardless of the cause, though, a behavioral health condition may entitle the employee to short-term or even a long-term disability benefits if severe enough to preclude work for an extended period of time.
What Kind of Conditions Trigger a Disability Benefit Claim?
Just as employers would not expect an employee who has experienced a serious physical illness or injury to come to work, behavioral health conditions are just as disabling. Depression and anxiety can lead to absences from work, or someone might have a condition that prevents them from concentrating and maintaining attention on the job. Further, while most employers have policies that prohibit the use of drugs or alcohol at work, substance use disorders are at epidemic levels and often lead to missed work. Employees should receive time off to receive necessary treatment and recover.
How Do I Make a Claim for Benefits?
So long as the employer has a disability benefit program, the employee is entitled to utilize that program. It is a federal law violation for an employer to interfere with an employee’s use of employer-sponsored benefits or to retaliate against an employee for using benefits. If the behavioral health condition is severe enough, and the employer has at least 50 employees, unpaid Family and Medical Leave can be elected concurrently with short-term disability. The employee needs a medical professional to certify the condition as a serious illness and to verify the employee’s symptoms are serious enough to preclude working. The condition must be diagnosed by a qualified behavioral health professional, and the employee needs to be undergoing treatment in order to assert a claim for benefits.
For short-term and long-term disability benefits, the behavioral health professional will need to complete a form documenting the presence of a diagnosis listed in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. But a diagnosis alone is never enough to qualify someone to receive benefits. There also needs to be a detailed description of symptoms and an explanation as to how the employee’s symptoms either restrict or limit the employee’s ability to perform their job.
In assessing a disability benefit claim, insurers look for specific information such as the results of mental status examinations. They also expect that serious mental illnesses are treated with a higher level of care than biweekly or monthly psychotherapy; and prescriptions for psychotropic medications can be an indicator of severity. A descriptions of symptoms is also critically important – documented reports of tearfulness during session, disorganized thoughts, or even suicidal ideation for depression or an unwillingness to leave home for anxiety are critical observations that should be documented. Levels of treatment are also key factors that are looked at by insurance companies. Partial or inpatient hospitalizations can be a deciding factor, but so can intensive outpatient therapy. Rehabilitation programs for treatment of substance use disorders is also important to establish disability for such impairments; and neuropsychological testing is the gold standard for establishing cognitive impairments.
Nor should claimants overlook co-morbid physical conditions. An employee with a spinal impairment that causes depression due to chronic pain should be submitted as a dual-diagnosis disability claim.
The treating behavioral health professional may also be contacted by the disability insurance company or by a consultant it has retained for further elaboration. Claims are not approved based solely on a psychiatrist’s say-so that the patient is “disabled.” There needs to be more explanation provided with particular focus on functional limitations and a treatment plan aimed at getting the patient back to good health and back to work.
Is There Anything Different About Behavioral Health Disability Claims than Other Disability Benefit Claims?
While federal and state mental health parity laws mandate equal benefits under health insurance plans, those laws do not apply to disability insurance. Almost all disability benefit plans discriminate against behavioral health claims by limiting the duration of payments available for mental health conditions. The typical long-term disability benefit plan limits payments for psychiatric disorders, including substance use disorders to a maximum of 24-months while benefits for physical conditions are payable until age 65 or Social Security Normal Retirement Act. Such distinctions are, at present, only unlawful in Vermont, but laws under consideration in Illinois and elsewhere are aimed at expanding mental health parity laws to disability insurance. Of course, if there is a co-existing physical condition that is also disabling irrespective of the presence of a psychiatric disorder, the limitations are not applicable. Also, statistics show that most work absences due to mental health conditions are relatively short in duration and recovery is likely before the benefits expire.
Employees need to familiarize themselves with their employer-provided benefits, including disability benefits that cover claims involving behavioral health conditions. While such benefits are only in effect during employment, the right to make a claim does not automatically end if the employee is terminated, especially if the termination was triggered by a mental health condition. If the employer offers a severance in exchange for the employee releasing the employer from any legal liability and there is a potential for submission of a disability benefit claim, the employee should be wary of signing a release without legal guidance because the employee may be giving up the right to receive disability insurance that would have a greater economic value than the severance payment.
Behavioral health illnesses are just as real as any physical illness; and just as an employee with a bad back or heart would apply for disability benefits if such a condition caused an extended absence from work, someone with a mental health condition is equally entitled to utilize their employer-sponsored disability benefits.
-Mark D. DeBofsky, DeBofsky Sherman Casciari Reynolds, P.C.