The intersection of law and social media fascinates me. Courts, judges and lawyers are trying to figure out how to deal with these new forms of communication. There are great concerns over privacy, as employers have fired employees for postings they have made on their private blogs.
So a story from Canada caught my eye this weekend. It was about a woman who was receiving disability benefits for the past year and a half for major depression. It is common when someone is on disability benefits for the insurance company to call and talk to the employee and ascertain if she is still disabled and whether or not the benefits should continue. In a case of depression, the representative might ask questions about the person's moods and activities, and request the person's medical records. Based on the information gathered, the company decides whether the person is still disabled.
What has gathered attention in this case is that the company made the decision that the woman was no longer disabled and thus no longer entitled to disability benefits based, in part, on pictures posted on her Facebook page. The pictures showed her on a vacation at the beach, and at a Chippendale's male stripper show. The insurance company reasoned that if you go on vacation and go out for a good time, you aren't suffering from depression and thus aren't disabled.
It shows a narrow view of depression and mental illness. People who are depressed do go to the beach, to a wedding or out to go shopping. They don't all shut themselves in their homes. The woman's doctor also said that "having fun" would be good for her health and help her recover. So much for that advice.
You also wonder how the insurance company got access to her pictures. Many people do accept friend requests from people they don't know, but you wonder if there was any deception in gaining access to her personal information. The story also make you (or at least me) think twice about what we post online, even on our personal Facebook page. It is all, potentially, in the public domain.
Monday, November 23, 2009
Sunday, November 8, 2009
Mental Health Parity Act: Know What That Means For You and Your Beneifts
A new federal law, the Mental Health Parity Act, will take effect on January 1, 2010 and could have widespread implications for the benefits you receive from your insurance plan for mental health treatment.
As of Jan. 1, the law requires that group plans covering more than 50 people provide the same level of care for mental health and substance abuse problems as for medical ones. Right now, most employer plans provide less coverage for mental health — say, by limiting the amount of visits you can make to a provider or setting higher annual deductibles than for medical care.
New York Times published just law week an interesting article about the Mental Health Parity Act and what it might mean for you. The article also includes useful advice for how to navigate the changes. The article can be accessed by clicking here.
As of Jan. 1, the law requires that group plans covering more than 50 people provide the same level of care for mental health and substance abuse problems as for medical ones. Right now, most employer plans provide less coverage for mental health — say, by limiting the amount of visits you can make to a provider or setting higher annual deductibles than for medical care.
New York Times published just law week an interesting article about the Mental Health Parity Act and what it might mean for you. The article also includes useful advice for how to navigate the changes. The article can be accessed by clicking here.
Thursday, November 5, 2009
Enforcement Guidance from EEOC on Psychiatric Disabilities
Earlier this year, the EEOC issued Enforcement Guidelines on psychiatric disabilities and how employers should deal with employees or applicants who have "mental impairment" that can be defined as a "disability" under the Americans with Disabilties Act. The Guidelines are meant to provide recommendations and advice on how to deal with the many individuals with mental illness who are employed in the workforce.
An important point that is raised in the Guidelines is that not all "mental illnesses" as defined by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (now the fourth edition, DSM-IV) is a "disability" for purposes of the ADA. For example, the DSM-IV lists several conditions that Congress expressly excluded from the ADA's definition of "disability."8 While DSM-IV covers conditions involving drug abuse, the ADA provides that the term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of that use.9 The DSM-IV also includes conditions that are not mental disorders but for which people may seek treatment (for example, problems with a spouse or child).10 Because these conditions are not disorders, they are not
impairments under the ADA.
As of yet, there are no per se disabilities, so even an individual with depression might not be disabled under the ADA, depending on the facts. A disability under the ADA has to "substantially limit" a major life activity such as sleeping, caring for oneself or working. It also needs to be permanent or long-term in order to be a "disability." Thus, an example is made in the Guidelines of an employee who was distressed by the end of a romantic relationship and was able to continue his daily routine, although he sometimes became agitated at work. The agitation lasted about a month and the condition was diagnosed as "adjustment disorder" with limited duration. This individual is not 'disabled" under the ADA because there is no "substantial" and permanent or long-term impariment to any major life activity.
In contrast, the EEOC provides an example of an employee has had major depression for almost a year. He has been intensely sad and socially withdrawn (except for going to work), has developed serious insomnia, and has had severe problems concentrating. This employee has an impairment (major depression) that significantly restricts his ability to interact with others, sleep, and concentrate. The effects of this impairment are severe and have lasted long enough to be substantially limiting.
The Guidelines provide a wealth of valuable information for both employers and employees. Employers need to be familiar with their obligations and requirements when faced with a disabled individual (for example, whether they can ask about a psychiatric disability during a job interview, or whether a part-time schedule or leave is a reasonable accommodation) and employees need to be aware as well of their rights under the law so that they can take action when they might be violated or in risk of being violated.
An important point that is raised in the Guidelines is that not all "mental illnesses" as defined by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (now the fourth edition, DSM-IV) is a "disability" for purposes of the ADA. For example, the DSM-IV lists several conditions that Congress expressly excluded from the ADA's definition of "disability."8 While DSM-IV covers conditions involving drug abuse, the ADA provides that the term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of that use.9 The DSM-IV also includes conditions that are not mental disorders but for which people may seek treatment (for example, problems with a spouse or child).10 Because these conditions are not disorders, they are not
impairments under the ADA.
As of yet, there are no per se disabilities, so even an individual with depression might not be disabled under the ADA, depending on the facts. A disability under the ADA has to "substantially limit" a major life activity such as sleeping, caring for oneself or working. It also needs to be permanent or long-term in order to be a "disability." Thus, an example is made in the Guidelines of an employee who was distressed by the end of a romantic relationship and was able to continue his daily routine, although he sometimes became agitated at work. The agitation lasted about a month and the condition was diagnosed as "adjustment disorder" with limited duration. This individual is not 'disabled" under the ADA because there is no "substantial" and permanent or long-term impariment to any major life activity.
In contrast, the EEOC provides an example of an employee has had major depression for almost a year. He has been intensely sad and socially withdrawn (except for going to work), has developed serious insomnia, and has had severe problems concentrating. This employee has an impairment (major depression) that significantly restricts his ability to interact with others, sleep, and concentrate. The effects of this impairment are severe and have lasted long enough to be substantially limiting.
The Guidelines provide a wealth of valuable information for both employers and employees. Employers need to be familiar with their obligations and requirements when faced with a disabled individual (for example, whether they can ask about a psychiatric disability during a job interview, or whether a part-time schedule or leave is a reasonable accommodation) and employees need to be aware as well of their rights under the law so that they can take action when they might be violated or in risk of being violated.
Monday, November 2, 2009
2008 Showed Dramatic Jump in EEOC Charge Filings
2008 showed a dramatic increase in the number of charges filed with the EEOC, or Equal Employment Opportunity Commission, the federal agency with jurisdiction over discrimination in employment. The EEOC investigates and prosecutes cases under Title VII, the ADEA (Age Discrimination in Employment Act) and the ADA (Americans with Disabilities Act).
2008 had the largest number of discrimination charges filed since 1997 -- 95,402. In 2007, there were 82,792 charges filed. That is about a 10% increase. The economic downturn is partly to blame. Complaints of discrimination rise as more people are laid off and are concerned that their race, disability or gender played a role. Of the charges filed in 2008, 20.4% were for disability.
The full statistics can be accessed here.
2008 had the largest number of discrimination charges filed since 1997 -- 95,402. In 2007, there were 82,792 charges filed. That is about a 10% increase. The economic downturn is partly to blame. Complaints of discrimination rise as more people are laid off and are concerned that their race, disability or gender played a role. Of the charges filed in 2008, 20.4% were for disability.
The full statistics can be accessed here.
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