Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 25: What You Need To Know About The Intersections Between Disability & Employment Law With Attorney Marcus Castillo

February 22, 2021 Nancy L. Cavey Season 1 Episode 25
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 25: What You Need To Know About The Intersections Between Disability & Employment Law With Attorney Marcus Castillo
Show Notes Transcript

In this Episode - Nationwide ERISA Long Term Disability Attorney Nancy L. Cavey tells us about "What You Need To Know About The Intersections Between Disability & Employment Law with Employment Attorney Marcus Castillo".

Marcus is Board Certified in Labor and Employment Law by the Florida Bar.

He is one of the first lawyers in the state to achieve this distinction. He is the founder of a jury trial consulting practice and regularly litigates in state and federal court.
 
His contact information is: Phone: 727-535-4544 website:  www.haas-castillo.com

Resources Mentioned In This Episode:

LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO PROFESSIONAL BOOK: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/

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Nancy L. Cavey:

I'm Nancy Cavey national ERISA individual disability attorney. Welcome to winning. Isn't easy today. We're going to talk about disability employment lawyers . He's with my special guest and dear friend Marcus Castillo, I'm often asked, how should you tell your employer that you're applying for disability benefits? How should you ask for FMLA and how long does it last? Can my employer fire me? What happens to my group insurance? These are many questions that both Marcus and I, and yet we will have answers for you today. But before we get started, we've got to give you a legal disclaimer, this podcast isn't legal advice. The Florida bar association says that we'd have to say it, but nothing will prevent us from giving you the answers you need. So off we go, Marcus, welcome. It's great to have you here today. Can you tell us about yourself and how you became an employment law attorney? Sure,

Marcus Castillo:

Sure. It is a pleasure to be here. And , uh , so here's a bit of my story. Uh, I have been an attorney since 1983 , uh, the first 10 years of my practice. I , uh, first , uh, worked in a small what lawyers like to call boutique firm , trying cases on behalf of plaintiffs, the person's bringing the case. Then I shifted over for three and a half years to the defense side, which actually was in dyeable because it taught me a lot about the defense mindset. And , uh, I did that for , uh, as I say, as spell a time. And then around that point in time, I was ready to set out on my own or at least with a partner. And it just happened that in that same timeframe, again, the nineties , uh, Congress and the legislature were busy passing a number of critical employment laws that , uh , radically changed the landscape of , uh , employment litigation. Um, for instance, they passed , uh, the civil rights act , civil rights act amendments, which for the first time allowed for jury trials and employment cases , uh, also allowed, were recovery of emotional distress and punitive damages. And we also saw Congress passing the Americans with disabilities act and the family and medical leave act. So , uh, I viewed this as presenting an opportunity to help people in a different way. So I moved in a new direction and began taking those kinds of cases on behalf of employees. Um, and then while continuing to do this work, I saw that there were also opportunities to help folks in the employee benefits arena. So, you know, as you do as well, got into the Orissa realm, although I no longer do the long-term disability because, you know, you occupy the field there you're. So I focus on, you know, some of the subspecialties , like life insurance and accidental death and not arena, but , uh, you know, it's a mix between employment and Ursa and other forms of trial work. And , uh, that's a little bit about me.

Nancy L. Cavey:

Well, great. So I want to tap into your expertise in employment law. So tell us generally, what do clients need to know about employment law as it relates to their disability insurance claim?

Marcus Castillo:

Know ? So first, what folks need to know is that there is an overlap between employment and disability law. And what I've seen in my own career is that folks would come to me with a situation where they're getting harassed at work. They have a medical condition , uh, but you know, there's this notion that that maybe it would be better if they go on or long-term disability. And so what we have here is sort of the intersection between the ADA and , um , you know, disability law, and it's kind of a tricky sort of type role because under employment law, we have the Americans with disabilities act, which says that if you are a qualified individual with a disability, and that's an important phrase, which I'll touch upon some more here , um, you have the right at the standing to bring a lawsuit if you're being discriminated against on the basis of your disability. Okay. But the issue is indeed, are you a qualified individual with a disability? Which means, which means that you, despite your condition can still do the job. Uh, perhaps you'll need an accommodation, a reasonable accommodation I need to underscore, but at least you could do the job. Um, if you can't do the job, even with that accommodation, then that's when the disability law starts kicking in . When ERISA starts kicking in and, and one should be looking at short-term or long-term disability as a more viable option. So, you know, that's a little bit of a , uh, of an overview and oversimplification, if you will, but there's a huge intersection between the two.

Nancy L. Cavey:

So I'm often asked, well, how should I tell my employer that I'm applying for disability benefits because I'm afraid I'm going to get fired or I'm going to lose my benefits. So what advice do you have to clients in response to that question?

Marcus Castillo:

Well, the first thing I would tell anybody is look at what you've been provided since you've worked there. Most importantly, look at your employee handbook , um, look at your benefits books and inform yourself, you know, look in the employee handbook to tell you whether it gives you a protocol as to who you're supposed to talk to about applying for disability benefits. I mean, it may be in the benefits book, but first be armed , uh, to know what in fact your rights are. Um, also when you're looking at that, you know, you need to come to terms with what , um, your own doctors are gonna say. And I know you speak to that at length in your own practice. And when you counsel, you know, folks, but it's something you need to know. You need to know that not only from the disability law standpoint, in terms of your disability benefits, but back to what I was saying a few minutes ago, you need to know whether or not you would be a qualified individual with a disability. If you choose to stay there, because you're going to have to be one to Sue for disability discrimination. So in essence, what I'm saying to you is look at your manuals, inform yourself, take a hard, look at your own medical situation, and then do what the manuals say. If they're not clear about it, go to your HR or your benefits department and put them on notice that, you know, you're interested in making the claim and they should cooperate and give you the information in the forms you need.

Nancy L. Cavey:

So how much information do you need to give them about your medical condition ? Should you bare your soul or just say, you know , um , my doctors told me to stop working and I need to apply for benefits.

Marcus Castillo:

I mean, I think my personal belief is you don't need to bare your soul. I think the appropriate thing to tell them is that you need to look into applying for benefits, that you have some medical conditions that are concerning. And then that becomes a matter between you and the disability insurance company in large part, at least as far as applying for disability benefits.

Nancy L. Cavey:

So are they going to share information? I get that question all the time is that HR person that I go to my supervisor and tell them , I'm applying for disability benefits.

Marcus Castillo:

You have HIPAA protections, which should protect that kind of disclosure, you know, HIPAA laws, as you may or may not know , uh, make private your , uh, you know, your health information. I mean, at some point your health information becomes possibly relevant if you choose to pursue a claim for disability discrimination and yes, your health information may become relevant. To the extent your employer may have to fill out some questionnaire for the disability claim. But at the point we're talking about here, you know, looking into it, it's not there. The details are none of their business.

Nancy L. Cavey:

So , um, should I be applying for FMLA and how long does it last? That's another question that we get, should I be doing that in conjunction with my short-term disability application or, or , um , does my employer require me to do both? What's, what's your answer to those kinds of questions?

Marcus Castillo:

Sure, sure. So maybe some basics , uh, you know, would be in order here. So the FMLA for those of you that may not know is , uh , well, first FMLA is an acronym for the family and medical leave act, which was passed by Congress in their early 1990s. And basically it's a law that , uh, protects employees. Who've been at a company at least for a year where that company, employees , 50 or more employees, and what it gives you is up to 12 weeks of protected job, leave a calendar year. Uh, now that , um, leave can be taken either in a big chunk or it can be taken intermittently. And for the purposes of what we're talking about here, there's various forms of leaves . There's a military form of leave. There's a childbirth form of leave , but we're talking here in this context about leave for a serious health condition. So to answer your question, should you apply, you need to reckon with the question of whether or not you have a serious health condition, and if you do, then, you know , you may well be entitled to leave, and there's a process for that.

Nancy L. Cavey:

So Mark, as you and I both know that most short-term disability benefits are as short as three months, as long as six months. So if someone is applying for FMLA , um, depending on how long that short term disability plan is, they're possibly going to run out of FMLA at the point in time when their short-term disability benefits expire. What impact does that have if any, on their , uh, their job at the employer's place of business and what interaction, if any, does it have with the L

Marcus Castillo:

Right , right . Couple of things to talk about here, first off, you know, the way it works is that while FMLA itself, at least in the way the law state protects w one , uh, you know, and it's a form of unpaid leave the short-term disability sort of overlaps on top of the FMLA leave to provide paleo . Now, the question you're posing is what happens at the end of FMLA leave. You still can't go back to work. And, and the answer to that is it's very, very possible. You may lose your job. Now, I'm going to , I'm going to add a wrinkle to that and say that under the Americans with disabilities act, there is this notion that you might be entitled to have a little bit more leave after the 12 weeks. And if you can show that that's close ended and that it's a reasonable accommodation to give you a little bit more leave beyond the 12 weeks, but that's a case by case as sort of case by case basis sort of thing. But this underscores the reason why, if it's going to be , um , a serious health condition requiring you to be out of work for more than 12 weeks, you start looking at short and long-term disability. I mean, you're in fact on short term, probably if you're on FMLA leave, you may indeed need to be looking at long-term and what the long-term disability policy requires you to show.

Nancy L. Cavey:

Right . Well, that's great information. Let's take a break for a moment. All right. Sure. Welcome back to a winning. Isn't easy. I'm here with my special guests , Marcus, my employment law buddy. So another question that I get all the time is can my employer fire me because of my disability insurance claim? Okay .

Marcus Castillo:

Okay. Well, that's a good question. And the answer isn't simple. I mean, let's, let's be clear about what the question really is. Can, can my employer fire me solely because of my legitimate FMLA claim? The answer is absolutely no. And you know , if the question is, can my employer fire me solely because I have a disability, the answer again is absolutely not, but we have to really frame the question and we have to first figure out on the Americans with disabilities act side, are you, as I've talked about before qualified individual with a disability, so, you know, you have to seriously look at the question of whether or not you can still do the job even with an accommodation. And if you can't do the job, even with an accommodation, then an employer typically is going to have the right to terminate under the Americans with disabilities act. Okay. Now , um, in terms of , um, you know, the ADA , uh , let's uh , remember that , um, accommodations are required. So we need to, when we look at this issue of what termination rights the employer has, what accommodations are they providing? Are they being stingy? Are they ignoring you? Um, I would point out that employers have an obligation to engage in a serious discussion with you. It's called the interactive process. And if they're not doing that, they're in essence discriminating against you. Um, one last point I would want to make is , uh, I use the phrase solely because of a few minutes ago, you have to think about whether, you know, grounds are being assertive . So in other words, if an employee is stealing from the company, and then, and later it goes on FMLA, leave the employer finds out during the leave that the employee was stealing from the company, it's still going to have the right to fire because that termination and that scenario was not because of the person's , uh , taking FMLA leave or their serious health condition is because they were stealing from the company. At least if they can prove that. So, you know, it , it just depends on how you frame the question, whether or not your employer has the right to ,

Nancy L. Cavey:

So you and I both know that there are some , uh, risky disability insurance policies that actually require the employee to, or policy holder to attempt to return, to work in an accommodated , uh , position. Um , what's the interaction, if any, between employment, law and accommodations and an ERISA disability policy that says , um, you know, your employer, if your employer offers you accommodated work, you've got to , you've got to , uh , to , uh, attempt that.

Marcus Castillo:

Well, I, you know, I have seen that and I did see that when I was doing a lot of ERISA LTD, I mean, the policy is like a contract you're going to have to do what the policy requires you to do, or you'll have a potential policy defense. You know, it's going to come back, I think to what's reasonable under the circumstances. I know sort of a general answer, but that's context, what I think , right .

Nancy L. Cavey:

So often of course, what will happen is that at some point in time, the employer is going to terminate the policy holder simply because , uh, their leave has expired. Their FMLA has expired where they just need to fill the position or because the claim has been denied. Um, what , uh, what happens to the employees , health insurance benefits and life insurance benefits,

Marcus Castillo:

Right? So as it relates to health insurance , um, employees typically have the right to continue their , uh , health coverage under Cobra. Now, Cobra is a federal law that applies to employers employing 20 or more employees. Uh , there most States, including Florida have, what's known as a mini Cobra , uh , provision, which applies to employers employing two to 19 , uh , employees. So it's basically this , uh, notion and obligation that , uh , employers have to provide some, some at least ground floor protection. Uh , but , uh, be sure to know that you're going to have to pay the premiums under Cobra. Okay. Now, as far as life insurance is concerned, you need to look at the policy because the policy may provide for conversion rights. And it's very important if the conversion rights , uh, have, are contained in the life insurance policy that you be informed, they exist. All right. Cause conversion is this notion that you can , uh , by paying the premium , uh , convert the group life insurance policy to an individual policy.

Nancy L. Cavey:

So you and I both know that some policies will have a life waiver of premium Elwha , uh , and we sometimes get questions about, well, what happens to that? Elwha when my employment ends and my group insurance , uh, ends , um , what happens there from an employment standpoint?

Marcus Castillo:

Well, when your employment ends, you know, these policies typically will say that your coverage exists only as long as you're an employee. So when you cease becoming an employee, you cease becoming covered typically,

Nancy L. Cavey:

Right ? And of course, you and I both know that if an employee or a policy holder is terminated and they have a short or longterm disability claim, they don't, they're not going to lose their shorter long-term disability coverage because the claim arose at a time in which they were employed. So we don't want to leave anybody with missing understanding that they would lose their shorter long-term disability. Uh , if they were, if they were terminated,

Marcus Castillo:

That's absolutely right. Right. You look to when the , uh , the disability, the claim, if you will arose, and if it arose, while employment was still in place, then you're absolutely right.

Nancy L. Cavey:

I guess , what are the other questions that our listeners should be asking or thinking about that we haven't covered so far in this podcast?

Marcus Castillo:

No , I think one question to consider is what can an employee do if he or she thinks that they are in fact, a victim of discrimination? You know, my advice to folks is consult with a lawyer. All right. You know, there may be a number of things you should consider doing. You may well want to document what's going on a unit . You may need to send emails or correspondence documenting , uh, your concerns and put them on notice, because one of the important aspects of employment law, which we just don't have time to talk about here, but I'll just kind of put it out. There is this notion of retaliation that you should not be retaliated against for making a legitimate claim for discrimination and retaliation as an entirely separate cause of action, use lawyer speak, or re basis to Sue , to use a more lay sort of term.

Nancy L. Cavey:

So I, for example, have a case right now with a financial planner who is , uh, on his , uh , disability claim. He's on short-term disability will be transitioning to longterm disability , uh, and because , uh, he's not working his full-time hours or covering the number of cases he needs to cover. The employer is saying, we're going to change your commission and pay structure. In fact, we're going to claw back some bonuses that you took , uh, that you were eligible for because of your disability claim. Now you and I would agree, would we not that that would be a potential retaliatory claim against the employer.

Marcus Castillo:

Yes. And, and, you know, we've talked a little bit about a Rissa and we talked a little bit about retaliation. Let's kind of marry the two, there's a clause. There's a section. If you will, under Arisa that prohibits retaliation against employees or coursing employees solely because they are taking advantage of very employment benefits they've been afforded from the beginning.

Nancy L. Cavey:

And so , um, obviously I've referred him to an employment lawyer in Texas where he lives, but those are some examples of , uh , uh , retaliatory actions taken by an employer in conjunction with a display claim. Can you think of any others that our clients should think about and recognize as potential or retaliatory , uh , uh, causes of action?

Marcus Castillo:

I'm going to tell you a recent development in the law is the notion of retaliatory hostile work environment. Now, this is a cutting edge concept , uh, and , um, it just really is sort of been developed , uh , over the past year in the 11th circuit, the 11th circuit being the federal appeals court that governs Florida. And th that's this idea that if one is being belittled at work, one is getting harsh comments of one is being told that they no longer have any kind of chance for a future in the company. That alone could be under the most recent case law, separate basis for suit .

Nancy L. Cavey:

So you and I, of course have had cases where , uh, our clients have been working, they're disabled, they're doing the best they can. Now they're starting to get bad performance reviews they're getting written up , uh, and the environment is getting a little mean and nasty. Uh, is that the kind of circumstance that the, this case law contemplates, right?

Marcus Castillo:

It absolutely does contemplate that. And you know, one of the strategies that may need to , uh, be employed in this situation is the filing of an EEOC charge, you know, in a scenario where one is still working and perhaps on partial disability, you know, I'm gonna get too granular with the situation, but with one is being harassed. Um, it's, it's a situation where one might want to consider filing an EOC charge with , with the EOC, just we're clear about this , the equal employment opportunity commission alleging that one is being discriminated against on the basis of their disability. All right. So we have to look at each circumstance, but, but that again is part of the toolkit.

Nancy L. Cavey:

So how do you , uh , suggest to people find the right employment attorney for them? Because obviously , um , you and I make recommendations to attorneys for attorneys to every day, but , um, generally what's the key to finding the right employment attorney , uh, for a case?

Marcus Castillo:

Well, one thing I would suggest folks do if they're looking for an employment lawyer is to go on the Florida bar website and look specifically for an attorney board certified in labor and employment law. And the reason I'm suggesting that is because the process of becoming a board certified attorney is pretty, pretty arduous. You have to pass a written examination, you have to go through peer review, you have to show your experience in employment law over a span of at least five years. And so, you know, by definition, you have to go through a gauntlet to even get that. So, and I don't mean to say here that there are bad or unqualified , uh , attorneys in the employment law realm who are not board certified, but it's just kind of an easy way to find attorneys who, you know, shown expertise and demonstrated through a test. And the other things I talked about,

Nancy L. Cavey:

Why I give a shout out to Marcus because not only is he board certified, but he taught for many years in the board certification process for, for lawyers , um, most employment lawyers will charge an upfront fee for a consultation. Is that correct?

Marcus Castillo:

Uh, it kinda, it varies typically, yes, you will. Some sort of varies with the firm. I don't want to over over-generalize , but , uh, you know, generally some sort of, of, of con consultation fee is typical.

Nancy L. Cavey:

Uh , so how would you suggest that a person who has a disability insurance claim, who's thinking about consulting , uh , with a employment lawyer , um, go about , um, having a concise , um, consultation. In other words, you and I both know that the understanding the facts are very important and people want to tell their story, but sometimes the story doesn't help us with the employment law question.

Marcus Castillo:

You know, I mean, I often tell folks, write up a synopsis, give me an exact summary, right? Give me an exact summary with a timeline and then give me a cast of characters. Tell me who's gonna support your , uh, your story and what exactly you're going to say. Right. Cause that format gets me to where I'm right. And get more of a story rather than trying to pry the story out. Yeah .

Nancy L. Cavey:

Great. Um, obviously you are my go-to employment lawyer and the Tampa Bay, Florida area, and I rarely send you cases, but how can people reach out to you if they want to ask you any questions about their employment law case , uh, as it relates to , um, their disability claim?

Marcus Castillo:

Well, I'm going to give you two ways to reach us. Uh, the easy way is to call us at my office number, which is two seven five three five four five four four. And again, I'll say that (727) 535-4544, or you can go to our website, which is www dot Haas . That's H a S hyphen Castillo, C a S T I L L o.com. You'll find , uh , some useful information, some e-books and some other , uh, you know, web , uh, features that that may answer some basic questions for you, but at least we'll be a portal to, to,

Nancy L. Cavey:

So in closing any final comments, you have to , uh , our audience who are obviously people who are, have disability insurance claims and are dealing with employment law issues.

Marcus Castillo:

No, I , I think you covered the waterfront, but I would just say that , um, you know, for those of you listening, who may be on the fence about even , uh, you know, hiring a disability insurance lawyer, that you could not find anyone finer than Nancy Nancy, and I've had the chance to work together over a long period of time. So, you know, that's a kind things to me in as podcasts . And I would just leave to say the same thing about you, that you are an accomplished and do very

Nancy L. Cavey:

Well for your clients. Well, thank you. And , and , uh , you and I are always a great team and , uh, I enjoy working with you and your expertise that you bring to my clients. So thanks for this great information, Marcus, and taking the time to talk with us. Um, if you like this podcast, consider liking our page, leaving a review or sharing it with your family or friends. And remember our podcast comes out weekly. So stay tuned for next week's episode of winning isn't easy. Thanks.