Barton & Downes is investigating whether companies’ policies to terminate employees who are on long-term disability leave violate the Employee Retirement Income Security Act ("ERISA"). Since disabled employees are, by definition, unable to work and are therefore not earning a paycheck, the only reason to fire them is to avoid the cost of providing them with the healthcare and other benefits provided to all employees. Discharging an employee to interfere with the attainment of any right under a benefit plan, here the right to health benefits, would violate ERISA. If a violation can be proven, reinstatement as an employee and reinstatement in the plan (including back benefits) should be available as equitable relief under ERISA (although the scope of available relief under ERISA remains controversial).

In addition, we are investigating whether companies who have specific policies to terminate employees who are on leave after a set period of time as a result of disability (e.g. 6 months, 12 months, 18 months) without regard to whether they can return to work constitutes a violation of the Americans with Disabilities Act (“ADA”). A Mercer Human Resource Consulting study found that 27 percent of the 723 companies surveyed dismiss employees as soon as they go on long-term disability and that 24 percent dismiss them at a set time thereafter, usually six to twelve months. If such a policy implemented and failed to provide employees with a reasonable accommodation, the employees discharged may be able to obtain backpay, restoration of benefits, and perhaps additional damages.

We will want to obtain some information in order to investigate your claim, including copies of your employer’s policies or plans regarding disability benefits and your termination letter/notice. If you do not have copies of these documents, we can assist you in making a request for copies. There is no charge to you for us to assist you in making this request or for us to evaluate your case.