WHAT IF I LOSE MY JOB?

1. Can I File an LTD Claim if I am Terminated?

            Many attorneys and employees believe that the disabled employee cannot apply for LTD benefits after termination of the employee.  In the normal case, an employee is terminated several weeks or months after the commencement of disability but before the end of the “elimination period,” (a period that is usually three to six months before the employee is permitted to apply for long term disability benefits under the terms of the plan).  The employee may be receiving State Disability Insurance or Workers Compensation benefits or short term disability benefits under a company enhanced plan during this period.  However, the key date for determining eligibility for LTD benefits is the start of disability - the last day worked.  As long as disability occurred while the employee was still an employee of the company, the LTD plan remains operative, and the employee may apply for long term disability benefits under the plan.

2. Can I Release My LTD Claim by Signing a Release in a Severance Agreement or a Workers Compensation Compromise and Release?
   
               As a result of the employee’s disability and inability to return to work, the employer may wish to sever the employer/employee relationship by way of an enhanced severance payment in return for a general release of liability for all claims known or unknown.  These claims will usually include claims under the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), Title VII, the California Fair Employment and Housing Act (“FEHA”), the California Family Rights Act (“CFRA”), the Family Medical Leave Act (“FMLA”) and state claims such as defamation.  If the employer presents such a release to you, you should contact an experienced employment law attorney to review the release.  While a Workers Compensation claim cannot by law be released, an ERISA long term disability claim may be released by an employee who signs a broad release. 
               An improperly drafted Workers Compensation compromise and release may also bar an employee from pursuing his or her long term disability claim.  We have had the unfortunate experience of advising a local Workers Compensation attorney, who failed to exclude the LTD claim from such a release on behalf of his client, that his client was, in fact, barred from pursuing an LTD claim.  The employer relied on the release to bar the employee from pursuing an LTD claim against the employer’s self-funded plan.