COVID-19 and High Risk Individuals Under ERISA

If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com

In this time of the COVID-19 pandemic, we are getting questions about just how a person who might not be able to return to work because of some medical condition which might put them at an unacceptable risk should they contract the virus is to be treated under short and long term disability plans and under ERISA. The short answer to this question is that we just don’t know yet.

Generally, under most long term and short term plans, individuals who are not yet sick don’t qualify for benefits. So, as an example, let’s say that you have cystic fibrosis or muscular dystrophy, but it is being managed and you are still able to work. The management program involves an immunosuppressant. It would be very dangerous for you to return to work in an environment where the COVID-19 virus could easily be transmitted. What should you do?

The first thing you need to do is to check your policy. You will need to determine what the definitions of the words “sick” and “illness” are under your policy. Then, you will need to complete an application for benefits with your carrier, and make sure that the problems you set out fit within the definitions of your policy.

It is crucial when you do this that you set out the higher risk to you of exposure to COVID-19. In other words, you don’t want to just list muscular dystrophy or cystic fibrosis as the reason for your application — you need to clearly set out the increased risk of illness and/or death from the virus in light of your treatment for muscular dystrophy. In this circumstance, if your doctor is telling you of the danger of a return to work, it would be beneficial to have him put this in writing and attach it to the application. Be aware that even this tactic may not be successful in light of excusions for “future risk” or “possible loss.” Your policy may simply not cover you for what might happen but hasn’t yet happened.

This is the state of the law today. It may change. We are living in a new world now and the courts and policy makers are going to have to take this into account and make allowances. We will keep watching this area of the law will provide updates as we see them.