Disability, Leave and COVID-19

With the advent and swift spread of the coronavirus, all of us are facing an unprecedented challenge. In this episode, Lincoln legal and medical professionals help employers navigate this new environment, discussing the coronavirus and its impact on disability and leave. We’ll explore important topics such as: How and when does coronavirus constitute a disability? What are the key points employers should be considering when it comes to federal, state and company leaves? And what are we starting to learn from this environment to effectively manage our workforce in today’s temporary new normal?

For more information visit: https://www.lfg.com/public/covid-19guidance

Karen Batson: 0:00

Hi everyone. This is Karen Batson Marketing Manager for Leave and Disability at Lincoln Financial Group. There are a lot of questions out there today regarding the CoronaVirus and COVID-19. Today we'll focus our discussion around disability, leave and some community best practices and we'll be discussing these topics while practicing our social distancing and working from home. Here with us today, are three experts from Lincoln Financial Group, Tom Waldman, Vice President, chief counsel for group protection, Dr. David Berube, Chief Medical Officer and Sarah Montgomery, Assistant Vice President and senior counsel for group protection. Welcome everybody. Thank you for joining us. The first question I want to throw out to you, high level, why is it important for us to have this conversation? What are you guys hearing as to why we want to discuss these ins and outs?

Tom Waldman: 0:52

I think for me the main reason is there's a lot of uncertainty out there, a lot of, bad information. And so I think it's important for us as leaders and disability and leave to, provide good information. It's important to note too, you know, this is changing rapidly. We don't know everything, but we are doing our best and we do have information that we can share and, and be helpful and hopefully also, you know, address just the well being of employees and everyone, who we service, so they have a little bit more of the certainty and understanding.

Karen Batson: 1:41

Well, let's jump right kind of into that most, I think typical question from, my point of view, right. Will everyone who test positive for COVID-19 be covered by their disability benefits? Tom, maybe you want to take that question first?

Tom Waldman: 1:56

Sure. And I'm going to start with the very lawyer like response by saying I have a general dislike of really broad-base, you know, hypothetical type questions. The reason is it's a very practical reason. The reason is everyone's claim, every person who makes a disability claim that the claim is different, right? That no two people are exactly alike. And when we handle claims, we address it that way, that every claim is unique. And so we have to look at the facts of each claim. With that said though, what we would do is we apply the facts to the, the policy terms and in our policies. Well, one quick other point on that. So we look at the definition of disability or total disability or partial disability and with our insured contracts or insured policies, those can vary slightly depending on what we have filed in different States and what customers want. And then also we administer the self funded programs of employers and those can I have different definitions of disability. So that's another reason why very broad statements can sometimes not. be as well serving as we think. So I'm going to look just one common definition of disability, which is that a person is disabled if they are unable due to their sickness or injury to perform each of the main duties of their occupation or their usual occupation or own occupation. So with that definition, you now look at the question, which is if everyone who tests positive, are they going to be eligible for disability benefits? And the short answer is no, and I'll use myself as an example. If I'm working from home right now and let's say I test positive tomorrow, I hope I don't, but if I do, and I have very, let's say I'm one of the fortunate ones who have very little in the way of symptoms, you know, I just have a aches and pains in a sniffle or something like that, I can still work from home, right? I can still do my job. I can do every main duty of my job. So I would not qualify for disability benefits. I can file a claim if I want to, but I don't think in that scenario I just gave that I would, qualify because I can do my job and perform my job duties. So, Dr. Berube, do you have anything else you would add?

Dr. David Berube: 4:40

Yes, Tom. So I think we're a lot of confusion comes in is when people have the tests or even if you don't have it, you don't need to have a test to be placed into what we call a quarantine. Also to be identified as having an illness or medical condition. Oftentimes all you need is a clinical exam or a recommendation from a physician that based upon your personal situation, you may have the illness. Now, the term quarantine is often used in many people believe that term equals having an illness. And basically the word is used to define the need for someone to prevent themselves from exposing others to them in the event that they develop an illness. So someone who's placed on quarantine is not sick either at all or yet. And we in the COVID situation want to have them monitor themselves in case they become sick in a setting where they're not exposing others. Now, should they become sick? And an example might be even the flu influenza where once someone becomes ill with say, an upper respiratory infection, they have a risk of exposing others. And the term quarantine no longer applies at that time. You would use the term isolation where you would prevent the individual from engaging in activities with others. So for example, if, if you're at home with the family, you would want to be in a separate room. You would want to use even an separate bathroom. If you share toothpaste with family members, you'd want to have your own tube of toothpaste to really minimize the possibility that someone has the possibility of getting an infection from you. So that's what we call isolation. Now, generally, someone won't be placed into isolation precautions unless they're ill or sick. And the question then becomes, well, how do I know that I'm ill or sick? And that's where this sort of a pandemic situation there's a need to consider getting testing if there's no testing available. There's a recommendation to speak to your treating provider, local health professionals and the advice that the CDC has and others are recommending that things that can be done even telephonically because we don't want are healthcare providers exposed by lots of potentially sick people going in. But a discussion needs to happen with a provider or health expert on the possibility if someone has a fever above a hundred degrees perhaps, or if they're older it may not, even the temperature may not even, need to be a hundred degrees because some of the older folks or people with chronic medical conditions may not be able to manifest a fever. So fever is not an absolute requirement, but other signs and symptoms of illness such as a dry cough and so on. If someone has those symptoms and signs of illness, then one may have the need to further restrict themselves. So as Tom indicated, there may be individuals that have the ability to complete activities such as work in a home setting, but at some point, if you have a high fever and a dry cough, you may no longer be capable of performing such activities and need additional restrictions from engaging perhaps in any at all activities. And at that point, one would reasonably apply for disability benefits and may be entitled to those benefits. Now there are also as Tom indicated, other potential benefit entitlements, and I'm not the legal person on this team, but there may be some employers, and some States that have regulations which indicate that someone who's not met the, perhaps the isolation requirements, but simply the quarantine requirements may be entitled to different types of benefits. So that's something that again, legally I'm not the expert, but I am aware that all of these different situations and rules may apply to different individuals. And that's where, as Tom said on a case by case basis, each situation needs to be looked at individually. And I don't know, Tom, if you would expand on that.

Tom Waldman: 9:22

I'm sorry. Expand on the case by case or the different benefits available.

Dr. David Berube: 9:27

Yeah. So basically what I'm getting, I want to make sure that everyone understands the response that I just gave or that you had was on that single situation, where in someone has to have an illness to qualify for disability benefits and there is a potential that a self-insured employer for example, may want to have different rules.

Tom Waldman: 9:48

That's a good point. The self-insured employer could have a different, more expansive definition of disability for their self funded a disability plan or they could have a definition that includes someone who is in quarantine but not ill like you described. So there's a wide variety of ways that someone could get a disability benefit if those definitions a re, if the plans are different. And then there's a variety of other types either leave programs or state provided programs that may have different rules or definitions as well. There's been a lot of activity lately among the States a nd at the federal level. I think, you know, S arah can describe those. I'm not sure if w e want to get into all those immediately or, but we will, during this podcast.

Karen Batson: 10:52

So even though maybe an impacted person, our situation, it doesn't constitute a disability. There are still some other options, right. That they may fall under and leave might be one of them. Can we talk about what those options are? Maybe kind of had a high level. Sarah, maybe you want to take that one.

Sarah Montgomery: 11:10

Sure. Thanks so much for having this discussion. I think these are all really important things for all of us to talk about. There's so much information that's coming out so quickly too reaction to this base, you know, really unprecedented situation. In leave, there are a couple of different options. And again, echoing Tom and Dr. Berube's statements above is that all of this really does have to be assessed on a case by case basis. Since each person's facts are going to be different and different benefit programs may apply. For example, you know, for someone who may find themselves out of work because their employer is closed, disability or paid sick leave benefits might not be available, but that may be a scenario where unemployment benefits would be able to fill in to provide some income replacement. Where disability or sick leave is no longer an option. For employees and States like New Jersey, New York, California, Rhode Island, Hawaii, and Washington state, Some employees may be eligible for statutory benefit programs if they are ill or exposed to COVID-19 or they may be eligible for paid family leave benefits if they need to care for a family member who's ill or quarantined, or to care for their children who are home from school. Something that's truly unique in this, scenario with COVID is we're seeing so many people with school closings who are now home with their children. So they're really looking for alternatives to try to find, you know, they have to stay home and care for their children and to look for some benefit programs to assist during that process. There are also several States where employers are required to provide paid sick leave. So in these States, employees may be able to use that entitlement if they themselves are exposed to COVID or if they needed time to care for their children because the schools are closed. Again, what we've said before, to echo everything we've mentioned above is the how and when and why a lead may be taken is going to depend on the state you're in and the situation you find yourself in. Whether you yourself are sick, you need to care for a sick family member or you need to care for your children who are home from school. I also realized this is a lot of information to process and in addition to providing information to this podcast, we're also supplementing, the resources available on lfg.com with additional COVID- 19 specific resources. So that's another place to look, to get more information.

Tom Waldman: 13:42

Sarah, what about the recently enacted federal bill? How does that come into play in this situation?

Sarah Montgomery: 13:51

So on Wednesday night, the US Senate passed the house version of the Family's First Coronavirus Response Act that provides, emergency paid sick leave for employees who need time to care for themselves or a sick child. And the bill also expands the federal family medical leave act to cover employees who need time to stay home and care for their son or daughter under the age of 18 because their schools have been closed or their child care providers are no longer available because of declarations of public health emergencies. What's a little bit different about this piece of legislation than the regular FMLA is that it applies only to employers with less than 500 employees. So it's a little bit different than what we were seeing under normal FMLA regulations. However, things are rapidly changing. We're already hearing about new federal legislation being drafted. So I would expect to see more changes to on a federal level to paid sick programs or the additional changes to the FMLA. As you know, this really unprecedented public health emergency changes basically on a day to day basis.

Karen Batson: 15:09

Now I know things are changing at the state level as well. Do you see any commonalities or patterns across the States that just just kinda emphasize where people are focusing? The need for support?

Sarah Montgomery: 15:24

Yeah, so again, on a, what we're seeing across all 50 States is all of the state departments of insurance or issuing bulletins and guidance requesting that insurers do everything they can to, you know, be flexible in providing benefits. In the case of health insurance, expanding benefits for COVID testing, and other insurer in other insurance areas, making sure that employers and insurers are extending as much flexibility as possible for premium payments and, requiring documentation to be returned to insurers because they understand that trying to get certain medical documentation is going to be really difficult when most people are being asked to stay home and medical providers. And the care system in general is really being stretched in response to this. So we are seeing state's, really on the DOI level, asking for maximum flexibility during this time. Additionally, for the States that have statutory disability programs, for instance, two that come to mind are California, Rhode Island. They've expanded the scope of their state disability plans to include certain COVID related reasons such as if you need leave to because you're under quarantine or you may have been exposed to COVID. These States have waived their normal elimination periods. So disability benefits are available to these employees basically on day one of their claim versus sometimes in a normal situation they may have a seven day elimination period. In addition, on Wednesday night, New York passed a bill to provide paid sick leave and in some cases expanded paid family leave and paid disability leave benefits to employees who are subject to mandatory or precautionary quarantine orders. Um, again, this combination of benefits will depend on employer size and I refer you to checking on lfg.com to look at our resources that are available there. Since I don't want to get bogged down in the details, but there are expanded benefits available in these States.

Karen Batson: 17:34

We'll include a link to all of our listeners in our description so you can easily access that page. Now earlier in your answer, you use the word flexibility a lot and I'm just hearing that so often in general as people are dealing with this environment, not just in the way that you were talking about it, but employers being flexible and our communities being flexible, being flexible with ourselves and our schedules. I just kind of wanted to get a reaction from all of you with that word, in this current environment.

Dr. David Berube: 18:08

Yeah, this is a Dr. Berube. I think we all have to be thankful for all the efforts that we'reworking to together on. There are, you know, first responders, there's healthcare providers, there are, electricians and plumbers and everyone's working together to keep the grid and the system and all the responses going. And if one is not directly involved they may have a family member or friends and so on in the neighborhood that they're helping. And I think this, this does require flexibility in everything we do. And many employers are coming to the plate and allowing their workforces to have some flexibility to be able to manage situations such as when the kids are at school and the schools are closed and we need to make sure that our future generations have their education and so on. So, I'm just delighted to be a part of all this and to see this and it's great to see America responding to the challenges that are out there and so on.

Tom Waldman: 19:19

And I'll add, I saw a really, I thought moving photo online yesterday, the day before, and it was a group of doctors and nurses in scrubs with their masks on and they each were holding up signs that had different words on them and it basically said the message was, We are working nonstop to help protect you and to help you get better. Please do your job and help protect us. And really that means if you're asked to, do your do your part with social distancing. I think that's really important. I think a lot of people at first didn't think it, didn't take it as seriously everyone should have. and so I think that's one way to be flexible. If it's suggested by the scientists, to stay away from others as much as you can, you know, do it. Do your part. The other thing that comes to mind for me, and I think we all need to be open about this topic is the just the general well-being of everybody. This is a very stressful time, right? A lot anxiety about the world today. And so I just, I think it's really crucially important for us to check in on each other, whether that's your family, your friends, your neighbors, who you don't see as much because we're all inside. You know, your coworkers call up and just say, Hey, how are you doing? I know for me it helps to vent. You know, I may call Sarah up and just kind of complain for a while about all this, about what my kids are doing is I'm trying to get work done and that's helpful. And so I think, you know, we're in a new world, a new normal, and I think, keeping our mental well-being at the forefront is going to be critical.

Sarah Montgomery: 21:37

Yeah. I agree with Tom that it really is an unprecedented event in most people's lifetimes, to have to stay home, and it's causing a lot of ripple effects. We're still in early days, and as Tom said, the most important thing really is to reach out to people. I know daily I make an effort to go through my contact list and call some people I wouldn't ordinarily talk to since I think we all have the opportunity to reconnect and touch base and find out what we can do to help each other. And sometimes because many of us are alone or you know, in a different room to try to get away from time away from kids or from family members, they just want to take a break. Then it's nice to reach out to some new people but, and be flexible. What's been great about this scenario is that maximum flexibility from our employers to enable us to take time during the day. If you need to take time away from work to eat with your kids who are home or to go check on an elderly family member and neighbors. It's just that sense is really nice that we can all support one another during this really unprecedented event in most people's lives.

Dr. David Berube: 22:47

Yeah, I was going to add, we haven't talked about, privacy and confidentiality. Most likely many supervisors and managers are not used to speaking with their employees in a setting like this. And we have had privacy regulations passed the HIPAA regulations many years ago. And some of the directive, I think that was out there was that supervisors, managers should not talk to there, subordinates/employees, about medical problems. Because of that, there was always a concern that if someone is out or not working, I'm not allowed to speak to them. What we need to understand is it's okay to speak to people so long as you're not violating confidentiality. With the COVID situation, I think it's appropriate to speak about business issues. How are things going? If you're in a work at home situation, is a computer going well, just some updates and making sure the businesses is working. Employees may want to share that they've have had an exposure or there's a family member that was exposed and now they place themselves in quarantine. From a public health standpoint, there is a need to make sure that people with potential exposures are aware so that they can quarantine themselves. We need to be careful that we don't stigmatize those individuals, that we don't share information names unnecessarily and I would advise all managers to father their company's policy from a privacy perspective. The department of public health is doing an excellent job with this and one can always talk to them for guidance and so on. We need to make sure that we communicate with employees appropriately and also our relatives and friends. The same I apply there from a privacy perspective. Some individuals may not want others to know that they're in a quarantine because of an exposure and that may be okay so long as we follow our public health guidance and inform the department of public health so they can do their job in making sure that the outbreak can be mitigated as much as possible.

Tom Waldman: 25:23

Um, that's a really good point Dr Berube. Privacy and confidentiality rules are still fully in effect in this situation. Follow your company's policies there and rest assured that at Lincoln we are as well. Mmm. There's a difference between calling up a coworker and asking about their health situation and calling up and asking, how are you doing? Right? Anything you want to talk about. We have to always keep in mind that the privacy, particularly of our customers, is in front of mind at all times.

Karen Batson: 26:16

Now you bring up an interesting question that maybe we should chat about. You know, we've talked about disability and what constitutes a disability. Then we were talking about all these leave programs that are shifting, that are available. We've talked about slightly unemployment availability. Now we're talking about the policies about communication. Have we learned anything from our own best practices? And that's how to keep everything in this type of environment so that we're doing the right thing for our employees?

Dr. David Berube: 26:49

I know I was in a recent conversation with a group of staff in our medical department and one of the things that we had identified was we are often co-located together, working together, collaborating on a daily basis and even though one may not have a meeting scheduled, one sees people and when we engage and having our department moved to work at home situation, we recognize right away that we were sort of missing that. I think one of our learnings that we have now is we developed daily huddles and a Huddle's simply a call. We get together 10, 15 minutes, make sure that we have an understanding of perhaps things that we may have collaborated on just in passing each other in the hallway or walking by someone's desk. Cause that's a big learning for us and we've come up with a way to sort of replace that day by day solution, uh, with a daily huddle that we hadn't scheduled. We do have scheduled huddles for business reasons, but this was sort of an additional huddle that is supplementary to what we were usually doing.

Sarah Montgomery: 28:05

In the legal department, Tom has done the same thing for us is that we have daily time for all of us to get together and just talk and check in. It's been nice cause the point of the conversation is not to talk about work, but it's just to replace the human interaction that we used to have when we saw each other in the office. It's been really nice and hopefully other employers are doing the same thing just to afford as many opportunities as possible for people to stay connected if not physically, but virtually.

Dr. David Berube: 28:35

Yeah. And unfortunately, I've heard because of some bandwidth issues for many of our customers they were using a video technology and as you know, video oftentimes is very useful. It supports engagement from a distance standpoint in meetings. One can read body language, one can sort of interrupt each other and see PowerPoint presentations and so on. My understanding is to assist with some of the bandwidth challenges out there some of that video technology because it requires so much bandwidth, it has been a challenge and some solutions are being put in place. The auto-solution is fine. That is one thing that I've heard in speaking to some of our customers. They've had to sort of shut that down temporarily, but, I think a huddle, phone call, is a solution that can be considered by many.

Tom Waldman: 29:40

Hey, Dr. Berube. You had mentioned this word earlier, tele-medicine. I've read articles in the last week about the increase in the use of tele-medicine. Do you see that as a temporary situation or do you think that medicine is going to start going more towards that type of care?

Dr. David Berube: 30:07

Great question. So tele-medicine is already established and it's been used for several years in certain areas. We're very fortunate actually, that tele-medicine has already established itself. Many people haven't used it, so we don't have a lot of experience by the vast majority of the population. Now you can imagine the elderly, who may not have the knowledge of how to use various devices, cell phones, computers, would be limited in their ability to use it. The millennial generation, generation, X, Y, Z, whatever you want to say there, most individuals who had a college education in the past, you know, decade plus are definitely using it today. From a COVID-19 standpoint, that is ideal because I think what we don't want to do is have ill individuals go into a setting where they may bring the illness in, spread it, and affect people in a waiting room or infect our healthcare workers. So I think the first line of response needs to be that individual calling their provider, calling the local health department, and identifying some opportunities where their symptoms, signs of illness can be addressed and tele-medicine is the solution. You don't need the video though. So tele-medicine can be conducted with the telephone only, simply the audio and, tele-medicine can also be conducted through electronic capabilities, without the voice, if one's able to type. Whatever the limitations are, I think there are some solutions that we need to approach. We are in our medical department are able to accept tele-medicine visits and apply an interpretation of the need for restrictions and so on. Obviously if someone is so ill that they need to be seen and examined and be at a hospital, et cetera, we don't want to stop that from happening by any means. That's where I think the engagement with the provider on the other end can help one make that decision. So then one could go to the hospital or get some testing through like a drive-through center, where that could keep everyone safe.

Karen Batson: 32:47

Yeah. One of the things that I find fascinating, even just listening to this conversation, you know, we're talking about more use of telehealth, even though it's existed before using it more. We're talking about instituting new ways of communication for everyone. It's just what are we learning from all of these things that might actually carry us through when we're past this crisis moment and impact us moving forward in the future. It's just a very interesting observation to start watching what we're learning.

Dr. David Berube: 33:19

Yeah. And in particular where I see a lot of value is individuals are surfing the internet and self-diagnosing, self-treating, but in doing that, errors can be made if they don't have the knowledge to make the right decisions and/or if the information they're learning on the internet is not accurate. So by using a tele-health/telem-edicine tool, where there is an expert on the other end who's either drafted the material that's accurate, and or can engage with that individual through a conversation that provides a higher level of quality care for that event. Oftentimes it's beneficial to all parties. Healthcare providers today are very busy taking care of the ill with COVID-19 and if they can engage in a telemedicine solution with an individual that saves time for that provider. That's really what we want to do right now. Also, it allows the providers to limit their exposure so they don't become ill, which is a grave concern and we all feel for Italy, are our comrades across the ocean, they are struggling with this now and telemedicine is a great solution where we can help prevent the healthcare workers from getting ill.

Karen Batson: 34:53

We've covered a lot of questions here. Let me just ask, are there any other areas that you want us to dive into today or remind people or questions that we're getting that we should really address in this conversation?

Tom Waldman: 35:09

We've covered it, but I go back to the general sense of community and the well-being of our people. I think we all have an obligation, like I said, to check in on people. See how you're friends, neighbors, coworkers are doing and support each other as much as we can during this time. It's a unique time, talking about silver linings is you do see the best in people in times of crisis and, and we're seeing a lot of that. I like to try to keep on the positive side of things. It's really hard right now, but the more we can make that effort, I think the better off we all, all will be.

Karen Batson: 36:10

Well said. Well. Thank you all for joining us. I really appreciate your time. I am sure some of you will be back on the show as we were going to try and deliver other topics that are pertinent at this time. Our next episode is actually going to cover communication tips. Communication at varying levels. We kind of touched upon it today, so I look forward to diving a little deeper into it. But thank you all for joining us. To everyone listening, we'll continue to provide episodes on this show where we discuss what is happening in the world today and share best practices with you. Be sure to subscribe to Lincoln Absence Advisor on Apple, Spotify, or wherever you listen to make sure you get the latest from us here at Lincoln Financial Group.

Disclosure: 36:57

The information contained in this podcast is for general use and is not a substitute for the advice of an attorney or your human resource professional. Lincoln Financial Group is the marketing name for Lincoln national corporation and its affiliates. Affiliates are separately responsible for their own financial and contractual obligations.

Lincoln Absence Advisor

Disability, Leave and COVID-19

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