MK Disability Lawyers' Statement on COVID-19 - Read Post

As workplaces slowly begin to reopen over the next several weeks and months, many of us might feel anxious about returning to work and the possibility of being exposed to COVID-19. 

However, if you are someone who has a medical condition that puts you at an increased risk for serious complications from COVID-19, you might decide that returning to work right now is not worth the risk. 

If you do decide not to return to work, you might be wondering whether you can apply for disability insurance benefits (such as short-term or long-term disability benefits), either through your employer’s group benefits plan or through a private or individual disability insurance policy.

In this article, we will explore the following issues to determine whether you might have a valid claim for disability benefits if your medical condition puts you at an increased risk for serious complications from COVID-19. 

  • What types of medical conditions put me at higher risk from COVID-19?
  • What do I need to consider before deciding to return to work or apply for disability benefits?
  • Will my disability insurance claim be approved, if I do not return to work?

What types of medical conditions put me at higher risk for complications from COVID-19?

If you have had a serious illness in the past or if you are currently suffering with a disease or illness, depending on the nature of your medical condition, your doctor may have advised you to self-isolate during this pandemic. 

According to Centres for Disease Control and Prevention, those at high-risk for severe illness from COVID-19 are people of all ages with underlying medical conditions, particularly if not well controlled, including:

  • People with chronic lung disease or moderate to severe asthma
  • People who have serious heart conditions (heart disease, hypertension)
  • People who are immunocompromised
    • Many factors and conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
  • People with severe obesity (body mass index [BMI] of 40 or higher)
  • People with diabetes
  • People with chronic kidney disease undergoing dialysis
  • People with liver disease

What do I need to consider if my doctor has advised me not to return to work, at this time?

If you have one of the medical conditions listed above or if you have some other condition that puts you at increased risk, you have likely been taking extra precautions over the past several weeks and months to protect yourself from contracting COVID-19.  If you have continued to work, you have most likely been working from home.  However, as workplaces begin to re-open, you may be expected to return to your place of work. 

Although you may be eager to resume your work-life and your employer may be equally as eager to resume normal operations, your doctor may be telling you that it is still unsafe for you to be out in the world.  This may leave you wondering what to do and how to balance the risks of getting sick versus that of losing your job.

You might decide with your doctor that you will not return to work right now, under any circumstances, as the risk to your health is too great OR you might be weighing your options and risks in which case, you will likely be considering a number of factors, such as:

  1. What can my employer do to keep me safe at work?
  2. What if my doctor is telling me that I should not return to my workplace?
  3. What benefits are available to me if I do not return to my workplace?
  4. Can my employer terminate my employment if my disability claim is denied and I do not return to work?

What can my employer do to help me feel safe at work?

Returning to work will mean that it will no longer be possible for you to continue to isolate yourself and continue to take many of the precautions you have been taking to avoid getting sick.  While the virus might be under-control in some areas according to experts, the risk that remains is still a very real and pressing concern for people who are at risk of serious and even fatal complications from COVID-19.  If you have an underlying condition or you are at higher risk, you will want to know what measures your employer can take to keep you safe, if you do decide to go back to your workplace.

It may be helpful to know that employers have a legal duty to provide a safe working environment.  This includes providing employees with personal protective equipment (masks, gloves, etc.), if the employees’ duties put them at risk for contracting COVID-19.  In addition, employers are also required to ensure other protective measures are put in place, such as, hand, respiratory, and environmental hygiene and social distancing. 

What if my employer’s protective measures are not enough to keep me safe?

What if you and your doctors are of the opinion that these basic protective measures are not sufficient to reduce your risk from COVID-19.  If you and your doctors believe that additional measures are needed to protect you at work, you may want to raise your individual risk concerns with your employer and discuss what other reasonable measures could be taken to protect you.  You will likely need to provide your employer with recommendations from public health or from your doctor to ensure that the appropriate measures are taken, in your particular case.

If additional measures are not taken by your employer or if your doctor is of the opinion that you should not return to your workplace even with additional safeguards, then you may legally refuse to attend your workplace.  In response to your refusal to return to work, your employer may support you in your decision and allow you to work from home or allow you a leave of absence. 

However, if your employer insists that you return to work, it may proceed with an investigation of your concerns and add measures to protect you. A government regulator may also be involved in the investigation and remediation process.  If you do need to exercise your health and safety right to refuse to work under provincial laws, be assured that your employer cannot terminate your employment or discipline or intimidate you.

At the end of the day, whether or not your refusal to work is reasonable will depend on your individual circumstances.

What if my employer wants me back at work but my doctor is recommending that I not return to my workplace?

If your doctor is advising you to remain at home and is of the opinion that the measures your employer has put in place to protect you at work are not sufficient given your individual risk from COVID-19, you should consider taking the following steps:

  1. Obtain a note or letter from your doctor explaining that given your vulnerability, you should continue to isolate yourself, at home.
  2. Contact your employer and explain your circumstances and provide your doctor’s letter in support of your refusal to work.  Your employer does not necessarily need the details of your medical condition; only that your medical condition puts you at substantially increased serious risk from COVID-19.
  3. Consider with your employer whether it would be possible for you to work from home.
  4. If working from home is not possible, discuss with your employer whether your employment status will change and if/how that might affect your entitlement to group benefits (such as extended health, disability, life insurance, etc.).
  5. Do not quit your job.  Offer your employer a follow-up date, at which time you and your doctor will reconsider your participation in the workplace.
  6. Consider what social assistance or employment benefits are available to you if you do not return to work.

If your employer terminates your employment because you have refused to return to work because of your individual health risk of doing so, you should consult with a lawyer to determine your rights.

What benefits are available to me if I do not return to my workplace because returning to work is dangerous to my health?

If you do not return to your workplace because your doctor has deemed it unsafe for you to do so, your employer may or may not allow you to work from home and depending on whether working from home is possible for your job.  If your employer does not allow you to work from home, you may find yourself without an income.  You will then want to consider applying for various income benefits, including CERB.  Please see our previous blog, LTD & COVID-19 Part 4: Applying for Disability & Other Assistance During COVID-19 to determine whether you might qualify for CERB and/or other types of benefits.

If your employer does not terminate your employment and places you on an approved or unapproved leave of absence, your group benefits through your employer may or may not continue. It is important that you confirm with your employer whether your benefits will be extended through your leave of absence.  Your employer may also give you the option to maintain your coverage, if you pay the premiums.  It is important that your benefits are maintained should you need healthcare coverage or should you need to make a disability claim.

If I do not return to work because I am high risk for complications from COVID-19, can I apply for disability benefits through my group/individual insurance policy?

If you have group benefits through your employer or benefits through a private/individual insurance policy, you may wonder whether you should apply for short-term and long-term disability benefits.  The short-answer is that if you are not able to work for medical reasons, including the risk to your health should you contract COVID-19, you should consider applying for short-term and long-term disability benefits.

Whether or not your disability claim will be approved is a complicated question without a “one-size-fits-all” answer.  The answer will depend on the basis for your claim (the reason and medical support), the policy wording and how the insurance company decides to assess your claim.

The administrator or insurance company who assesses your disability claim may or may not be more lenient during the COVID-19 pandemic with respect to their assessment of the basis for your claim, the information they will accept from you proving you have a disabling condition, and in determining whether you are receiving appropriate treatment. 

However, the reality is that your entitlement to disability benefits are based on a contract of insurance and if you are not able to satisfy the insurance company that you are eligible and meet the definition of disability under the contract/policy and that you are continuing to fulfil other conditions of eligibility, such as receiving appropriate treatment, the insurer is within its right to deny or terminate your disability benefits.

The definition of disability for most short-term disability plans is whether an illness or injury prevents you from performing the duties of your job.  Similarly for long-term disability benefits, the definition for the initial period is usually whether you are unable to perform the duties of your own occupation due to an illness or injury.  Most group disability insurance policies also have a change in the definition of disability that occurs usually, at the two year mark, which requires you to be unable to perform the duties of any occupation earning a gainful income.  The definitions of disability and the terms and conditions of eligibility vary from policy to policy.

In the normal course, insurers will assess whether you are disabled based on your functionality; meaningwhether you have the physical and/or cognitive ability to do the duties of your job/occupation/any occupation.  However, if you are not able to work due to the risk of exposure to COVID-19, you may actually have the functional ability (like the ability to sit, stand, lift, walk, concentrate, focus, multi-task, etc.) to perform the duties of your job/occupation, but still not be able to return to work due to an illness or injury. 

In these circumstances, insurance companies will need to determine whether you actually are unable to do your job due to an illness/injury and whether denying your claim on the basis that you are in fact functionally able to do your job, is fair to you and consistent with the wording and intent of your insurance policy.

By denying your claim, the insurance may be effectively forcing you to return to work and thereby risk your life and health.  In this sense, work is “contraindicated”; meaning returning to work is not medically supported or advised and could aggravate or cause serious harm to your health.  While there is a basis for the insurance company to find that you are not able to do your job due to an illness/injury, even if you are functionally able to perform the duties of your job, there is also an argument to be made that you are not able to work due to an illness or injury (such as those listed as “high risk”, above).

What information do I need to support my disability claim?

In an effort to provide supportive information to the insurance company that you are not able to perform the duties of your job due to an illness or injury, it will be important for you and your doctor provide detailed information on the claims forms (Claimant’s Statement and Physician’s Statement) and also by way of a supplemental letter/report from your doctor(s), explaining the following:

  • What illness/injury do you have that would put you at increased risk from COVID-19;
  • How would exposure to COVID-19 affect your health;
  • Why are the recommended protective measures at your workplace insufficient; and
  • How is the risk of returning to work affecting your mental/physical health and cognitive function.

The same details would be needed on an appeal or in litigation, if your insurance company terminates your long-term disability benefits during the COVID-19 pandemic and your doctor does not support you returning to work, following a period of disability.

If you are finding it difficult to prove your claim to the insurance company or if your claim has been denied or terminated for any reason, it is important to contact us, as soon as possible to discuss your options and how best to dispute the denial or termination of your claim.

What should I do if my claim for STD / LTD benefits are denied or terminated?

If the insurance company calls you or sends you a letter to tell you that your STD / LTD benefits have been denied or terminated, it is important that you act quickly.  The longer you go without an income the more difficult things will become for your financial situation and the resulting stress may aggravate your existing physical/mental health condition.

Sometimes the insurance company (or administrator) might offer you the opportunity to provide additional information as part of an internal appeal of the denial/termination of your claim.  This may be an option for you if you have not previously provided all the information you and your doctors had related to your claim. 

If you have already provided everything, and you are not medically or functionally able to return to work, then your only option will be to hire a lawyer to sue the insurance company for your disability benefits.  It is important to remember that there are limitation periods for commencing a lawsuit and you do not want to have your claim dismissed based on suing too late.

If you are considering applying for STD/LTD or if your STD/LTD has been denied or terminated and you are considering appealing or litigating, or if you have any questions regarding making a claim for STD/LTD benefits due to a medical condition that is related or unrelated to the COVID-19 pandemic, we encourage you to contact MK Disability Lawyers to discuss your options and your approach.

If you would like to discuss your Long-Term Disability claim with a lawyer, MK Disability Lawyers LLP are experienced lawyers dedicated exclusively to the practice of LTD litigation.  We have represented disabled clients in various professions against all major life/health insurance companies in Canada.  We would be happy to provide you with a free consultation

The preceding is not intended to be legal advice.  This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice.  By using this blog, you understand that there is no solicitor-client relationship between you and the blog publisher.  The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.  If your disability claim has been denied and you require legal advice, contact a lawyer specializing in disability law.