Published on February 28th, 2014 by Alan L Sklover
“Be careful about reading health books. You may die of a misprint.”
– Mark Twain
ACTUAL “CASE HISTORIES”: Jana, 34, was an experienced graphic artist employed by a large website development company. For five years, she was a star performer, and over time rose to a Senior Graphic Artist position. The workload had grown quite considerably in recent years, due to her employer’s trying to get more and more work done with fewer and fewer employees. Still, Jana was the kind of person who exercised seven days a week, and always had the energy to do everything she wanted, always with a bright smile and a cheery personality.
Lately, though, Jana didn’t feel quite right, and seemed increasingly unable to do her work. She experienced frequent exhaustion and problems concentrating. She couldn’t figure it out. “Could this be something that comes with your mid-30’s?” she asked herself, but it was surely more than that. Little by little, all sorts of things began to bother her: fatigue, fevers, hair loss, joint pain, sensitivity to light, and even mouth sores. They came and went. After seeing four different doctors, all of whom performed blood tests, none of whom could diagnose her problem, she was near the end of her rope. Finally, a rheumatologist diagnosed her with systemic lupus erythematosus, or “lupus” for short.
Jana learned that lupus is an autoimmune illness affecting women more than men by a ratio of 7 to 1. Actually, it is a collection of autoimmune illnesses, in which the human immune system becomes hyperactive, and attacks normal, healthy tissues. Treatment consists primarily of immune-suppressive medications, primarily corticosteroids, although new drugs have recently come to market.
Jana had good days and bad days, but more and more they were bad. Unfortunately, her bad days affected her work performance so much that she received an annual performance review of “Does Not Meet Expectations,” and she was put on “Final Warning.”
Though reluctant to share her problem with those at work, Jana spoke with her Human Resources Director, who was sympathetic, but clear in her message: there was little she could do. She said, “The work has to be done; if you can’t do the work, someone else has to.” With time not on her side, Jana consulted us to review her work options.
LESSON TO LEARN: It seems to be more and more common: employees all ages are having difficulty performing their work due to one or more illnesses, medical or otherwise. Some attribute this phenomenon to the increasing stress so many employees are experiencing at work, which is affecting their health. Some say it is the increasing workload, increasing hours demanded, and fewer and fewer sick days, vacation days and holidays. Some suggest that it is attributable to the many chemicals in our food, water and environment.
Whatever the cause is, our office is seeing more and more cases of employees feeling ill, many experiencing stress-related illnesses, and seeking alternative ways of coping and recuperating. While each person’s facts and circumstances are different, and because the options available to people in this situation can be confusing, people seek clarity. For many people, just knowing the available options, in and of itself, seems to reduce stress.
While figuring out exactly which options are available to you, and which you should pursue, and how they are related to each other can be as frustrating, “If you need to know, you need to know.”
HERE ARE 13 AVAILABLE OPTIONS: Here are thirteen different options available to those who are having a hard time doing their work due to illness or disability. Regardless of the options you are considering, your first step always needs to be to find out what your employer’s “illness-related” policies, plans and practices are, which in larger companies generally means contacting your Human Resources representative. Don’t be too surprised if your Human Resources representative is confused about the various options available to you, and how choosing one may affect the other, because the options available to you are multiple, often interrelated, and confusing to them, as well.
[Note: Options 1 through 6 were explained in Part 1 of this two-part Newsletter. They were: (1) Paid Sick Days: (2) Paid Vacation Days; (3) Unpaid FMLA Leave; (4) Disability Accommodation; (5) Short Term Disability (“STD”); and (6) Long Term Disability (“LTD”). You can review those topics in Part 1 of this Newsletter on our blogsite.]
7. Workers Compensation – Workers Compensation is an employer-funded insurance program administered by the states.
Early in the 1900’s, as factories employed more and more employees, more and more employees became injured or ill due to conditions on the job. To address this problem, most states instituted a new and separate insurance system, and dispute-resolution system of courts and judges, to take care of employees who became injured or ill related to their jobs, separate, distinct from, and outside of the regular Courts.
The idea was to require all employers to contribute to one state-managed insurance fund that would be used to pay workers injured on or because of their job for (a) their unpaid medical bills, and (b) their lost wages. This separate system was called Workmen’s Compensation; today we call it Workers Compensation, or “Workers Comp,” for short. It is administered by each state. Similar insurance-type programs are set up in many other countries, as well.
If your injury or illness came about from something that happened on the job, or related to it, a Workers Comp filing may be the way for you to go. Workers Comp is almost a separate legal specialty; in my opinion, only attorneys who handle Workers Comp cases, or almost nothing but Workers Comp cases, should handle Workers Comp cases. Incidentally, most states forbid attorneys from charging clients for handling Workers Comp cases; the legal fees earned by Workers Comp attorneys usually comes from the Workers Comp insurance fund, itself.
If you need a Workers Compensation attorney in your area, you can locate one by contacting the Attorney Referral Service of your local bar association.
8. Social Security Disability – Social Security Disability Insurance (called “SSD” or “SSDI”) is a federal insurance program funded by the United States government managed by the Social Security Administration. It is designed to provide supplemental income to people who are physically restricted in their ability to be employed due to a disability. It can be provided on a temporary or permanent basis.
Social Security Disability Income does not depend on the income of the disabled person receiving it. To qualify for Social Security Disability benefits, an employee must first have worked in jobs covered by Social Security. The amount received is based on past earnings.
To qualify for Social Security Disability, a person must: (1) have a physical or mental condition that prevents them from engaging in any “substantial gainful activity”; (2) the condition is expected to last at least 12 months, or result in death; (3) they are under the age of 65 prior to the onset of the disabling condition; and (4) generally, they have worked at least a substantial period of time over the course of the 10 years before the disability took place. Medical evidence must substantiate the claim.
Applicants for SSD usually, but are not required to, have experienced representatives assist them in the application and, if necessary, the appeals process. Representatives do not have to be attorneys, and many are not. The fees that a representative may charge an SSD applicant is set by law. Generally fees are not charged for unsuccessful SSD applications.
If you need a Social Security Disability attorney in your area, you can locate one by contacting the Attorney Referral Service of your local bar association.
9. Severance – When most people think of the word “severance,” they think of the words “layoff,” “downsized” or “position elimination.” Most people do not mentally connect the words “severance” with the words “illness” or “injury.” Nonetheless, those who are having a difficult time performing their jobs due to illness or injury should consider severance as a possible option.
The reason for this is that, in its essence, severance is a “business transaction” whereby (a) the employee gives up his or her legal rights – whatever they might be – in exchange for (b) the employer providing some combination of continued compensation, benefits and other things of value. Some people call severance “a payment for a release.” It is, in its essence, a “risk reduction transaction.” To the extent that an employee can truthfully raise a claim that (a) the illness was caused or exacerbated by conditions at work, or (b) the injury took place on the job or is in some way related to the job, or (c) other claims might exist at the same time as the illness or injury, such as (i) bullying, (ii) illegal discrimination or harassment, (iii) retaliation, or (iv) non-payment of monies due, then the circumstances and the leverage may both exist to seek a severance arrangement.
Severance can serve the same function as a paid leave of absence: provide time to recuperate while still receiving income and, possibly, benefits. Especially in times of layoff or corporate reorganization, when a proactive request for severance may be welcomed by Human Resources, severance may be a perfect solution to a vexing problem.
Want to Ask for a Severance Package Before One is Offered to You? It often makes a lot of sense. We offer a Model Letter for Proactive, Pre-Termination Request for a Severance Package. It shows you “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly!
One of our most popular “Ideal Packages” of forms, letters and checklists is entitled “Ultimate Severance Package” consisting of four Model Letters/Memos for severance negotiation, as well as our 94-Point Severance Negotiation Checklist.” To obtain a complete set, just [click here.]
10. Going Part Time – One alternative course of action for those not feeling well enough to work might be requesting part-time status for a period of time, or perhaps even on a permanent basis. While lowered income and possible loss of benefits may be a heavy or impossible burden, “if you don’t have your health, you have nothing.” Being able to take off one or two days a week from work, or mornings or afternoons on a regular basis, might just be what you need to recuperate and rejuvenate, and requesting consideration of this from your manager, or Human Resources, might be a very wise thing to do.
11. Employee Assistance Programs (“EAP”) – Recognizing that valuable employees of all kinds sometimes encounter difficulties of a personal nature that can be overcome with assistance, many employers have set up programs, commonly called Employee Assistance Programs (or “EAP” for short) to do just that. The problems of a personal nature that EAP programs commonly address include, among others, (a) substance abuse, (b) emotional difficulties, (c) life cycle events, such as divorce and deaths in the family, (d) difficulties related to aging parents, and (e) personal relationships on the job.
In most cases, EAP programs are offered free of charge to employees, and are often handled by outside third-party providers. EAP programs commonly handle emergency requests, provide evaluations, and offer referrals to trained specialists in many different fields.
While almost all EAP programs promise confidentiality, some employees view EAP programs to be employer-sided, that is, not objective, impartial or confidential when it comes to matters that might bring legal accountability to employers arising from on-the-job problems. Being paid by company management usually means loyalty to company management, whether consciously or subconsciously, so a degree of skepticism and an ounce of caution before approaching your EAP provider may both be in order.
That said, if you need help for a vexing problem, and the help you need may be available from an EAP program at your workplace, and possibly without charge to you, consideration should be given to at least giving it a try.
12. Job Sharing – “Job Sharing” is a kind of regular part-time work in which two employees share the responsibilities of one full-time position. Each position involves an approximate 50% commitment. Job sharing arrangements are found most often in large institutions, such as universities, hospitals and library systems. Even if your employer does not offer job sharing, you might be wise in proposing it, especially if your employer views you to be a critically valuable employee it needs and wants to retain.
For those not feeling well enough to continue full-time work, and for those whose health and recuperation would be aided by reduced effort, this is often a helpful alternative. However, job sharing requires significant communication, collaboration, and clarity as to division of responsibilities.
In my experience, job sharing is perhaps most commonly used for new parents who are having difficulty, if not struggling, balancing often-conflicting needs of home, work, health and emotions. One of my favorite sayings is “How do children spell the word ‘love?’ T.I.M.E.” Well, that sort of goes for managers, too. Job sharing can provide a middle-ground for both.
If you are interested in pursuing a job sharing arrangement, you might speak with one or more colleagues who you think might want to work with you on such an arrangement. Before speaking with your Human Resources representative, it would be wise to first prepare a memo including (a) the reason for your suggestion, (b) the advantages to your department or group, (c) a proposed work plan including schedule and clarity as to division of responsibilities, and (d) a statement regarding whether you seek this for a limited period of time (for example, for a six-month recuperation) or permanently.
13. Colleague Sick-Day Contributions: Although admittedly unusual, if you are very ill, or are suffering a particularly difficult medical problem, some companies will permit you to ask your colleagues at work if they would be willing to “contribute” one or more of their accrued but unused sick days to provide you with additional paid time off. In the context of employment, it is something akin to a blood donation drive, or a bone marrow donation screening. Unusual? Yes. Impossible? No. A possible resolution to a very serious medical problem that involves many helping one? Yes. Something to consider when life seems quite bleak? Absolutely. Really difficult circumstances sometimes require out-of-the-box thinking, and this alternative is surely worth considering.
A Final Note and Suggestion: Health and wellness are necessary to work, to fulfill family obligations, and to enjoy life. If you are having doubts about yours, or are surely experiencing difficulties already, you must take steps of one kind or another to address the situation. Of course, you should always consult with your chosen healthcare professional in deciding what workplace option or options are best for you. In my view, the advice of healthcare professionals will and must always trump legal concerns and legal strategies.
No matter what paths you may choose to follow to address illness or regain your health and well-being, you should pursue that path with clarity, which usually means using email to communicate. Unlike the spoken word, email (a) cannot be forgotten, (b) makes a permanent record, (c) can’t be claimed to be loud or boisterous, (d) is harder to misconstrue than is the spoken word, (e) permits words to be chosen slowly and carefully, (f) permits thought before response, (g) reduces the fear and trepidation that often comes with face-to-face confrontations, and (h) can be sent at night, over the weekends, and on holidays. Be on the safe side: use email.
P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls.). Just [click here.] Evenings and weekends can be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the bumps in the road. Knowing the options available to you when you are not feeling well is an important part of that knowledge and understanding you need.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
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© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.