Social Security Disability Benefits: Compassionate Allowances

Waiting for the Social Security Administration (SSA) to approve Social Security Disability Insurance (SSDI) benefits can be a frustrating process, even more so if you have life-threatening medical issues. Compassionate Allowances (CAL) can speed up the approval process for those with the most debilitating and terminal conditions. The amount of benefits available for a Compassionate Allowance is the same as the regular SSDI or SSI benefit, but the time frame for review and approval is significantly shortened.

The Social Security Administration (SSA) adopted compassionate allowances in response to complaints that the SSDI application procedure was too drawn-out and cumbersome. CAL identifies specific medical illnesses that are so serious that they unquestionably meet the SSA’s disability requirements. Currently, there are over 240 conditions on the Compassionate Allowances list, including various types of cancer, genetic disorders, and neurological disorders. The SSA adds new conditions intermittently. The current list can be found at https://www.ssa.gov/compassionateallowances/conditions.htm.

CAL provides much-needed financial support to those who are facing immense medical and financial challenges. For those facing terminal illnesses, the expedited approval process under CAL is intended to provide access to benefits during one’s lifetime.

To be considered for a Compassionate Allowance, the applicant should advise SSA of their qualifying medical condition when applying for benefits. SSA reviews the application and medical records to determine if the applicant meets the Compassionate Allowance criteria. If qualified, SSA will then expedite the Claimant’s application.

Are Commissioned Employees Entitled to Overtime?

The answer depends on their line or work and their pay structure. FLSA regulations do provide an overtime exemption for certain employees of retail and service establishments who are paid on a commission basis. Retail and service establishments are defined as establishments that have a recognized retail concept and where 75% of sales are not goods for resale. Factors relevant to the “retail concept” might include whether the business sells goods or services to the general public or whether the business participates in the manufacturing process.

To qualify for the exemption under Section 7(i):

1. the employee must be employed by a retail or service establishment;

2. the employee’s regular rate of pay must be at least one and one-half times the applicable minimum wage; and

3. more than half the employee’s total earnings in a representative period must consist of commissions.

The representative period cannot be less than 1 month, or more than one year.  If all of these these elements are not satisfied, the employee would remain entitled to overtime pay.  Because the employer must verify that the regular rate of pay exceeds 1.5x the minimum wage, the employer still needs to track total hours worked during each pay period.

Prior to 2020, the U.S. Department of Labor published lists of businesses that they considered to be retail or non-retail.  The new rule withdraws their arbitrary reliance on the lists, allowing more industries to argue for the exemption.  

Can Your Employer Require You to Undergo a Fitness for Duty Examination?

The Americans with Disabilities Act (ADA) considers that employers may request fitness-for-duty examinations under limited circumstances. The legality of such exam requests sometimes can be complicated.

Generally, the ADA requires Employers to provide reasonable accommodations to individuals with disabilities unless doing so would impose an undue hardship. However, the ADA also permits employers to establish qualification standards that are job-related and consistent with business necessity. In some instances, a fitness-for-duty exam may be necessary to determine whether an employee can perform their job duties, with or without accommodations.

To require a fitness for duty examination, the employer must have a reasonable belief that (1) the employee’s ability to perform his or her essential job functions is impaired by a medical condition or (2) the employee poses a direct threat to safety of others due to a medical condition. The reasonable belief must be based on objective evidence, such as observations of the employee’s job performance or medical documentation. If properly supported, an Employee’s refusal to submit to a reasonable fitness for duty examination can be a basis for disciplinary action. However, if the request is not supported by objective evidence or overbroad in scope, an Employer’s termination of an employee based on an overreaching exam or refusal to submit to such an exam may lead to claims of ADA violations.

Under the ADA, a fitness-for-duty exam must be job-related and consistent with business necessity. In other words, the exam must be necessary to ensure that an employee remains capable of performing the essential functions of their job. The exam must be tailored to the employee’s specific job duties and cannot be overly broad or intrusive.

A fitness for duty exam also should not be abused as a means of discovery into an Employees entire medical history, especially if unrelated to the asserted impairment. The EEOC takes the position that an Employer’s request for medical records must be narrowly tailored to an employee’s job requirements. An overbroad release for medical records or a questionnaire seeking a detailed medical history could be improper, as it might allow the Employer to inquire about unrelated medical conditions or genetic information in violation of the Genetic Information Non-Discrimination Act.

In some limited circumstances, however, a fitness for duty exam may be required without having to articulate evidence of impairment or threat. For example, Employees out of work on worker’s compensation or FMLA leave may be required to submit a fitness for duty certification to return to work. Also, an employee requesting accommodation under the ADA may have to provide medical documentation to substantiate the medical condition requiring accommodation.

Will Your Children Receive Additional Benefits if You Qualify for Social Security Disability?

Social Security Disability Insurance (SSDI) provides financial assistance to individuals who have become disabled and are no longer able to work. If you become eligible for SSDI your dependent children also may also be eligible to receive additional family benefits based on your SSDI eligibility.

Your eligible child can be your biological child, adopted child, step-child or a dependent grandchild. To qualify, your child must be unmarried and either:

under the age of 18;

between the ages of 18 and 19 and still in high school; or

over the age of 18 and have a disability that started before the age of 22.

The amount of the dependent benefit is based on your own SSDI benefit amount. A child may receive up to 50% of your SSDI benefit. However, there is a limit to the amount of money in dependent benefits that can be paid out to any single family, which is known as the family maximum. The family maximum is typically between 150% and 180% of your SSDI benefit amount.

Normally, dependent benefits continue a child reaches age 18 (unless they also are disabled). However, if the child remains a full-time student, benefits may continue until the child graduates or until two months after the child becomes age 19, whichever is first.

When Can You Request Work Accommodations Under the Americans With Disabilities Act (ADA)?

Under the Americans with Disabilities Act (ADA), employers with 15 or more employees are required to provide reasonable accommodations to qualified employees with disabilities. Reasonable accommodations are adjustments or modifications to a job or work environment that enable an employee to perform the essential functions of the employment position. A reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment. It does not typically require the elimination of an essential function of a job, the displacement of other employees, or the creation of a new light-duty job.

The ADA does not require employers to provide accommodations that would cause an undue hardship, which is defined as an action that requires significant difficulty or an unsustainable expense. Additionally, the ADA does not require employers to provide accommodations that would pose a direct threat to the health or safety of others in the workplace.

The purpose and intent of reasonable accommodations is to provide employees with disabilities an equal opportunity to enjoy the privileges of employment when they are capable of performing the essential functions of a position. Some specific examples of reasonable accommodations might include:

• Installing a ramp to make a workplace wheelchair-accessible
• Modifying a restroom so a worker with disabilities can use it
• Allowing a flexible work schedule
• Reassigning a qualified employee to a vacant position

The exact procedure for requesting accommodations under the ADA may vary by employer, but the burden is upon the employee to initiate the request. Employees must request accommodations by informing their employer of their basic disability and the need for an accommodation. The request should be made in writing and should include a description of the accommodation needed.

Upon notice of the request, employers must engage in an “interactive process.” The interactive process involves a discussion between the employer and employee to identify the employee’s limitations and how they impact the employee’s ability to perform the job. If needed, the employer may request additional information from the employee’s healthcare provider to determine the medical and job related conditions. Although healthcare providers might suggest specific accommodations, employers are not required to provide the exact accommodation requested by the employee if there are other effective accommodations that also meet the employee’s needs.

Virginia Law to Strengthen Ban on Employment Contracts that Limit Disclosure of Sexual Harassment in the Workplace.

Virginia code Section 40.1-28.01 currently prevents employers from using non-disclosure or confidentiality agreements to conceal the details of sexual assaults occurring in the workplace. As recently signed into law, the statute will be amended to include broader claims of sexual harassment. The modified statute also will void non-disparagement provisions that could be asserted to stifle free speech of victims of sexual assault or harassment. While “sexual assault” is already defined in various criminal statutes, the modified provision will apply the definition of “sexual harassment” found in Virginia Code Section 30-129.4, which states:

Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

The final version of the amendment does not go so far as to void provisions that limit the disclosure of other discrimination complaints.

Can you draw both SSDI and SSI Disability Benefits?

The two most common types of disability benefits in the United States are Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). While both programs are administered by the Social Security Administration (SSA), they have different eligibility requirements and provide different types of assistance.

One question that frequently arises is whether it is possible to receive both SSDI and SSI benefits at the same time. The answer is yes, but it is not common.

SSDI is a federal program that provides benefits to individuals who have worked and paid Social Security taxes for a qualified number of years but are now unable to work due to a disability. To be eligible for SSDI, a person must have a disability that is expected to last at least 12 months and prevent them from doing any substantial gainful activity. The amount of the monthly benefit is based on the person’s earnings and contributions over their working life.

SSI is a needs-based program that provides financial assistance to disabled individuals with limited income and resources. To be eligible for SSI, a person must have a disability that prevents them from doing any substantial gainful activity and meet strict household income and asset requirements.
If a person’s SSDI benefit falls below the federal maximum for SSI, they may be eligible to receive both benefits. This is known as “concurrent” SSDI/SSI benefits. However, it is important to note that receiving both SSDI and SSI benefits is not common. If a person is eligible for concurrent benefits, their SSI cannot exceed the federal benefit rate (FBR), which has been set at $914 for 2023. Accordingly, if someone’s SSDI payment falls below the FBR, they might qualify for additional SSI benefits up to that amount, provided they otherwise are eligible based on financial need requirements.

What is the difference between SSDI and SSI disability benefits?

The Social Security Administration (SSA) administers two types of disability benefit programs” Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI). While both programs provide financial assistance to individuals with disabilities, they have different eligibility criteria and benefits.


Eligibility

The eligibility criteria for SSI and SSDI differ based on the applicant’s work history, income, and assets. SSDI benefits are available to individuals who have worked and paid Social Security taxes for a certain number of years. To qualify for SSDI, an applicant must have earned enough Social Security credits through their work history. The number of credits required depends on the applicant’s age at the time they became disabled. Generally, an applicant must have worked for at least five of the last ten years and earned a total of 20 quarterly credits to be eligible for SSDI. Your benefits are not limited by your assets or other household income.

For those individuals that lack work credits under SSDI, SSI benefits are available to persons with limited income and resources who are unable to work in any capacity due to a disability. Under SSI eligibility criteria, the SSA considers an applicant’s income and resources, including other household income, savings, investments, family contributions and property.


Benefits

The benefits provided by SSI and SSDI also differ. SSDI benefits are based on the applicant’s work history and the amount of Social Security taxes they have paid over time. The amount of the monthly benefit payment varies based on the applicant’s earnings history.


In contrast, SSI benefits are based on a maximum federal benefit rate. As of 2022, the SSI cap is $794 per month for an individual. However, the actual benefit payment amount may be reduced based on an applicant’s other household income and resources.

If you’re your application for benefits has been denied, it is important to consult with an experienced disability attorney to determine your appeal options. My offices offers free case evaluations for Virginia residents. Call 804-440-6557 to schedule an initial consultation.

Can your employer prevent you from sharing wage information with others?

In the past, it was not uncommon for employers to enforce strict confidentiality policies that limited an employee’s ability to discuss their own wage or salary information with co-workers, presumably for the purpose of deterring requests for wage increases or concealing disparate pay structures.

Passed in 2020, Virginia Code Section 40.1-28.7:9 now holds that “no employer shall discharge from employment or take other retaliatory action against an employee because the employee (i) inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation or (ii) filed a complaint with the Department alleging a violation of this section.” However, the law does specifically address restrictions on prior employees, thereby leaving open the issue of whether employers can enforce confidentiality provisions in settlement or severance agreements entered into post-termination.

On the national level, the National Labor Relations Act (NLRA) also prohibits employers from disciplining non-supervisory employees for discussing their pay with co-workers. The NLRA protects employees’ rights to engage in “protected concerted activities,” which includes discussing wages, benefits, and other working conditions with their colleagues.

In combination, these law provide protection for employees who discuss their wages with other employees, and employers who violate these protections can face legal consequences. Employees who believe they have been retaliated against for discussing their wages or for filing a complaint related to wage discrimination can file a complaint with the appropriate government agency or seek legal counsel.

Seizure first aid posters now required for some employers

Effective 2022, Virginia law now requires that employers of 25 or more employees post information on seizure first aid in a common area in the employer’s workplace. For the purposes of this section, “seizure first aid” means procedures to respond, attend, and provide comfort and safety to an individual suffering from a seizure. “Seizure first aid” does not include training to medically treat an individual suffering from a seizure. The poster can be downloaded from the Virginia Department of Labor at https://www.doli.virginia.gov/wp-content/uploads/2022/06/SFA-Flier_VALabor_8.5×11.pdf