Know your rights, Know your options.

A manual for navigating benefits and the legal rights of EOAD patients

I

Table of Contents

Glossary of Terms & Acronyms II

Introduction 1

Employment and Benefits Rights 2

Federal Benefits 6

Qualifying for Federal Benefits 8

Appealing Your Denial 10

After Qualifying for SSI or SSDI: Possible Family Benefits 12

DOL Rights 13

Am I Eligible for FMLA Leave? 13

The FMLA Leave Process 14

Medical Certification at a Glance 16

Veterans’ and Military Benefits 18

Veterans’ Affairs 18

Military Caregiver Leave 18

Legal Capacity 20

Concluding Thoughts 24

Appendices 25

Appendix 1: List of EEOC Field Offices 25

Appendix 2: EEOC Statute of Limitations and Family 27 and Medical Leave Laws by State

Appendix 3: List of State Bar Offices 30

II

Glossary of Terms & Acronyms

ADA Americans with Disabilities Act of 1990

ALJ Administrative Law Judge

CAL Compassionate Allowances

COBRA Consolidated Omnibus Budget Reconciliation Act of 1985

DNR Do-Not-Resuscitate

DOL Department of Labor

EEOC U.S. Equal Opportunity Commission

EOAD Early Onset Alzheimer’s Disease

ERISA Employee Retirement Income Security Act of 1974

FMLA Family and Medical Leave Act

FTD Fronto-temporal Dementia

PoA Power of Attorney

QDD Quick Disability Determination Process

SSI Supplemental Security Income

SSDI Social Security Disability Insurance

SSA Social Security Administration

VA Department of Veteran’s Affairs

1

Introduction

The idea for this manual arose from conversations with families who were dealing Early Onset Alzheimer’s Disease at the Emory Alzheimer’s Disease Research Center. In discussing their journeys, a common issue surfaced in these families where Early Onset Alzheimer’s seemed to manifest in the workplace, often creating an employment crisis. Families shared stories of how their loved ones regularly missed meetings, were not able to operate programs like PowerPoint, did not recognize colleagues or clients in the hallways and were constantly working on the weekends to catch up. Under the more scrutinized light of the workplace, early signs of the disease are elevated, leading to poor performance reviews, suspension, demotion or even termination. The consequences of termination or signing a severance agreement can be dire for a family--health insurance is lost and short term/long term disability plans, an important financial resource, are ended.

Because the symptoms seem to be exacerbated at the workplace, the group thought creating a resource guide outlining the major employment federal laws and benefits as well as general federal benefits that provide financial assistance would be a critical resource for families experiencing Early Onset Alzheimer’s Disease. Due to the lack of knowledge about the disease, qualifying for benefits and receiving said benefits in a timely manner is often difficult. This resource guide outlines: The American with Disabilities Act (ADA), federal disability and healthcare benefits through Social Security, Medicare and Medicaid, the Family Medical Leave Act, Veteran’s Benefits and Legal Capacity. The resource guide uses infographics to outline how to make claims along the associated timeline. It may be possible to receive benefits under one or more of these resources simultaneously, but you must comply with all of the specified requirements.

Additionally, this guide broadly describes common issues that individuals experiencing Early Onset Alzheimer’s Disease might encounter when handling their financial and medical affairs. From entering into a durable power of attorney to creating a living trust, families often find themselves making these difficult decisions much earlier than expected. There is a lot to know, but hopefully this manual provides critical information that can help you tackle familial and work-related issues surrounding Early Onset Alzheimer’s Disease.

Whether you are dealing with wrongful termination, denial of federal benefits, or a signed contract releasing your employer or insurer from providing you with long-term care, it is very important for you to retain legal counsel as soon as possible since these claims are time-sensitive. Looking back at their own experience with employment -related crisis, our families were united in saying that a lawyer is extremely helpful in navigating employment laws and federal benefits. We cannot reiterate enough that the benefits outlined in this guide are complex and multi-faceted. Hiring an attorney to handle this process may seem like a large expense at first, but it will likely save you a lot of money in the long run.

2

?Are you employed?

If yes or no, you should submit a formal request to your HR

department giving them notice of your disability and request for

“reasonable accomodation” in accordance with your rights

under the ADA.

Have you noti�ed your employer of your diagnosis?

Has your employer denied your request or threatened

to �re you?

You are protected under the ADA and have 180 days to �le a complaint with the EEOC* (See appendix 1 & 2 for your state’s

�eld o�ce and SoL)

Do you work for the government (state, federal, or local) or a private entity with

15 or more employees?

You are not covered under the ADA but possibly by state law (see

appendix 2).

Were you recenty �red or quit before your diagnosis?

Was your disability the cause for your termination?

Has it been less than 180 days since your

termination?

Do you work for the state of Georgia (or local

municipality)?

You have up to 300 days to �le

a complaint with the EEOC.

Do you work in a state

OTHER than Georgia?

You cannot �le a successful

claim. The SoL has passed.

Did you sign any severance packages

or releases that negatively a�ected

your retirement, insurance, or other

long term bene�ts?*

You should retain an attorney to contest the validity of the release. If you win, you receive your

bene�ts back and your attorney's fees are covered under

ERISA.*

I take care of the home.

Do you have any children or family members that you

take care of?*

Are any of them disabled?*

See “Possible Family Bene�ts”

on page 12

EMPLOYMENT BENEFITS AND RIGHTS

FIRED QUIT

Employment and Benefits Rights

3

The Americans with Disabilities Act and U.S. Equal Employment Opportunity Commission

In 1990, the American’s with Disabilities Act (“ADA”) became law. The ADA provides broad anti-discrimination protections for persons with mental or medical conditions. It protects Americans with disabilities against discrimination just as the Civil Rights Act of 1964 protects against discrimination based on race, religion, sex, national origin, and other characteristics. The law is designed to help people with disabilities access the same employment opportunities and benefits as people without disabilities. The ADA protect individuals with disabilities in employers’ decisions about hiring, work conditions, and firing. The ADA requires “covered employers” to provide reasonable accommodations to employees with disabilities.

The ADA covers both mental and physical medical conditions which would include Early Onset Alzheimer’s Disease. A diagnosis of Alzheimer’s (or any other organic mental disease listed under the act) is not reason alone to be dismissed. In general, the employer has an obligation to conduct an interactive interview with the employee to discuss any reasonable accommodations that the employer may be able to make so that the employee can keep his or her position.1

Reasonable Accommodation Under the ADA

The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability unless doing so would cause the employer “undue hardship.” Generally, “an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”2 There are three categories of “reasonable accommodations” under the ADA:

1. Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position the applicant desires; or

2. Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

3. Modifications or adjustments that an employee with a disability to enjoy equal benefits and privileges of employment as those enjoyed by its other similarly situated employees without disabilities.

Reasonable accommodation must be provided to qualified employees regardless of whether they work full-time or part-time, or are considered “probationary.” Generally, the individual with a disability must inform the employer that an accommodation is needed.3 But in some parts of the country, courts have ruled that simply telling your employer about your diagnosis does not mean you have requested an accommodation.4

Types of Reasonable Accommodation:

For persons diagnosed with EOAD, there are a variety of possible “reasonable accommodations” that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include, but are not limited to:

• Job restructuring;

• Part-time or modified work hours;5

• Acquiring or modifying equipment;

• Changing tests, training materials, or policies;

• Providing qualified readers or interpreters; and

• Reassignment to a vacant position.6

1 For example, if you are a truck driver and lost the use of your legs and it was deemed that you could no longer drive the truck, but could work as the dispatcher, those accommodations could/should be made.

2 See 29 C.F.R. pt. 1630 app. § 1630.2(o)(1997).3 See 29. C.F.R. pt. 1630 app. § 1630.9 (1997); See also H.R. Rep. No. 101-485, pt. 3 at 39 (1990) [hereinafter House Judiciary Report]; H.R. Rep. No. 101-485,

pt. 2, at 65 (1990) [hereinafter House Education and Labor Report]; S. Rep. No. 101-116, at 34 (1989) [hereinafter Senate Report].4 Wells v. Mut. of Enumclaw, 244 F. App’x 790, 791 (9th Cir. 2007).5 See Cehrs v. Northeast Ohio Alzheimer’s, 155 F.3d 775, 782.6 42 U.S.C. § 12111(9)(1994); 29 C.F.R. §1630.2(o)(2)(i)-(ii)(1997).

4

There are several modifications or adjustments that are not considered forms of reasonable accommodation. For instance, an employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation,7 is not a “qualified” individual with a disability within the meaning of the ADA. Nor is an employer required to lower production standards—whether qualitative or quantitative8—that are applied uniformly to employees with or without disabilities. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard.9

A modification or adjustment satisfies the reasonable accommodation obligation if it is “effective.”10 In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position.11 Further, a reasonable accommodation will be effective if it allows an employee with a disability to enjoy the benefits and privileges of employment that employees without disabilities enjoy.

What is Undue Hardship?

“Undue hardship” means significant difficulty or expense, and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty or providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, disruptive, or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. To determine whether a proposed accommodation imposes an undue hardship on an employer, the following factors must be considered:

• The cost (the firm has to take tax breaks into account when figuring the cost);

• How it will affect the business and other employees;

• The overall financial resources of the covered entity,12 the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities;

• The kind of work the business does; and

• How an accommodation will affect getting work done.13

7 “[W]ith or without reasonable accommodation” includes, if necessary, reassignment to a vacant position. Thus, if an employee is no longer qualified due to a continuing disability in his present position, an employer must reassign him as a reasonable accommodation. See Americans with Disabilities Act of 1990, §101(9)(B), 42 U.S.C.A. §12111(9)(B); Equal Employment Opportunity Commission Procedural Regulations §1630.2(o)(2)(ii), 42 U.S.C.A. foll. §2000e-4; Benson v. Nw. Airlines Inc., 62 F.3d 1108 (8th Cir. 1995) (holding that employee made prima facie showing that he was physically able to perform essential functions of mechanic’s position, shifting burden to employer to prove that reasonable accommodation was not possible); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996), abrogated by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (holding that employee was not required to show that her disability was sole reason for her termination); Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996); see also EEOC, Notice No. 915.002, Enforcement Guidance: Reasonable Accommodation And Undue Hardship Under the Americans with Disabilities Act 4, 37-38 n.73 (1999) [hereinafter Reasonable Accommodation and Undue Hardship Under the ADA].

8 29 C.F.R. pt. 1630 app. § 1630.2(n).9 “While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes.” Reasonable

Accommodation and Undue Hardship under the ADA, supra note 6, at 4. 10 29 C.F.R. pt. 1630 app. § 1630.9, See Senate Report, supra note 3, at 35 (“reasonableness” of an accommodation is assessed “in terms of effectiveness and

equal opportunity”); House Education and Labor Report, supra note 3, at 66 (“[a] reasonable accommodation should be effective for the employee””); see also Bryant v. Better Bus. Bureau of Greater Md., 923 F. .Supp. 720, 736 (D. Md. 1996); Dutton v. Johnson Cnt. Bd. Of Comm’rs, 859 F. Supp. 498, 507 (D. Kan. 19994); Davis v. York Int’l Inc., 2 AD Cas. 1810, 1816 (D. Md. 1993).

11 Similarly, an effective accommodation will enable an applicant with a disability to have an equal opportunity to participate in the application process and be considered for a job.

12 “The term ‘covered entity’ means an employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. §12111. “Covered entities” include all government employers (federal, state, and local) and any private employer who has at least fifteen employees—it extends to employment agencies, labor organizations, and joint labor-management committees, as well.

13 29 C.F.R. §1630.2(o)(2)(i)—(v).

5

Requesting Reasonable Accommodation

1. How should you request a reasonable accommodation?

When you decide to request an accommodation, you or your representative must let your employer know that you need an adjustment or change at work for a reason related to your medical condition. To request an accommodation, you may use “plain English,”14 and do not need to mention the ADA or use the phrase “reasonable accommodation.”

Example A: An employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.” This is a request for a reasonable accommodation.

Example B: An employee tells his supervisor, “I need six weeks off to get treatment for a back problem.” This is a request for a reasonable accommodation.

Example C: An employee tells her supervisor, “I need to modify my hours and/or create a transition plan due to my disability.” This is a request for reasonable accommodation.

Be Aware: While you may request a change due to your medical condition, this request does not necessarily mean that your employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between you and your employer. In some instances, before addressing the merits of the accommodation request, your employer needs to determine if your medical condition meets the ADA definition of “disability,” which is a prerequisite for the individual to be entitled to a reasonable accommodation.

2. Do requests for reasonable accommodation need to be in writing?

No. Requests for reasonable accommodation do not need to be in writing. Individuals may request accommodations in conversation or may use any other mode of communication.15 An employer may choose to write a memorandum or letter confirming the individual’s request. Alternatively, an employer may ask the individual to fill out a form or submit the request in written form, but the employer cannot ignore the initial request. An employer may also request reasonable documentation that the individual has an ADA disability and needs a reasonable accommodation (See Question 5).

3. May someone other than the individual with a disability request a reasonable accommodation on behalf of the individual?

Yes, a family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability. Of course, the individual with a disability may refuse to accept an accommodation that is not needed.

Example A: An employee’s spouse phones the employee’s supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time off. This discussion constitutes a request for reasonable accommodation.

Example B: An employee has been out of work for six months with a workers’ compensation injury. The employee’s doctor sends the employer a letter, stating that the employee is released to return to work, but with certain work restrictions. (Alternatively, the letter may state that the employee is released to return to a light duty position.) The letter constitutes a request for reasonable accommodation.

14 Nothing in the ADA requires an individual to use legal terms or to anticipate all of the possible information an employer may need in order to provide a reasonable accommodation. The ADA avoids a formulistic approach in favor of an interactive discussion between the employer and the individual with a disability, after the individual has requested a change due to a medical condition. Nevertheless, some courts have required that individuals initially provide detailed information in order to trigger the employer’s duty to investigate whether reasonable accommodation is required. See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996); Miller v. Nt’l Casualty Co., 61 F.33d 627, 629-30 (8th Cir. 1995).

15 “Although individuals with disabilities are not required to keep records, they may find it useful to document requests for reasonable accommodation in the event there is a dispute about whether or when they requested accommodation. Employers, however, must keep all employment records, including records of requests for reasonable accommodation, for one year from the making of the record or the personnel action involved, whichever occurs later. If a charge is filed, records must be preserved until the charge is resolved.” Reasonable Accommodation and Undue Hardship Under the ADA, supra note 6, at 11 n.20 (citing 29 C.F.R. § 1602.14).

6

4. When should you request a reasonable accommodation?

-You may request a reasonable accommodation at any time during the period of your employment. You should request an accommodation when you know that there is a workplace barrier that is preventing you, due to your disability, from effectively performing your job.16

- There are different issues that arise if your employment is terminated before you receive a diagnosis. For many individuals, the termination of their employment is what alerts them to the severity of their symptoms. Contact an attorney as soon as you are aware.

5. May your employer ask you for documentation when you request a reasonable accommodation?

- Yes. Your employer is entitled to know that you have a covered disability for which you need a reasonable accommodation. When the disability and/or the need for accommodation is not obvious, your employer may ask you for reasonable documentation about your disability and functional limitations.

- Reasonable documentation means that your employer may require only the documentation that is needed to establish that you have an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, your employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation.

-This means that in most situations an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

Filing a Charge of Discrimination with the EEOC

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. All of the laws enforced by EEOC, require you to file a Charge of Discrimination with the EEOC before you can file a job discrimination lawsuit against your employer. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person’s identity. You may file a charge of employment discrimination at the EEOC office closest to where you live or at any one of the EEOC’s fifty-three field offices.17

Statute of Limitations

Generally, the employee has 180 days to file a charge. The 180-calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a state or local law that prohibits discrimination on the same basis.18

Federal Benefits That Provide Financial AssistanceThere are several government benefit programs to help families cope financially with the costs associated with severe disabilities, such as Early Onset Alzheimer’s Disease. However, because these programs are primarily designed to assist the elderly, it is important to know your rights and the appropriate steps to take.

There are three major federal benefits programs that provide assistance for people with qualifying disabilities: (1) Social Security, which encompasses Social Security Disability Insurance (“SSDI”) and Supplemental Security Insurance (“SSI”); (2) Medicare; and (3) Medicaid. These three programs can assist people with EOAD in different areas of their lives. Social Security provides financial benefits in place of lost wages while Medicare and Medicaid pay for some medical care.

16 As a practical matter, it may be in an employee’s interest to request a reasonable accommodation before performance suffers or conduct problems occur. 17 The closest location for persons in the Atlanta area is: Sam Nunn Atlanta Federal Center, 100 Alabama Street, SW, Suite 4R30, Atlanta, Georgia 30303.

Individuals wishing to file a charge of discrimination may walk in from 8:30 a.m. to 3:00 p.m. Monday through Thursday and until 12:00 noon on Friday. The charge intake process may take up to two hours (you must also present a photo ID). The office is open Monday through Friday from 8:30 a.m. to 5:00 p.m. The contact number is 1-800-669-4000.

18 For a breakdown of the statute of limitations for bringing a discrimination claim and a summary of family and medical leave laws by state, see infra Appendix 2: EEOC Statute of Limitations and Family and Medical Leave Laws by State.

7

Social SecurityInitially signed into law in 1935 as the Social Security Act,19 this program was part of President Roosevelt’s New Deal system—intended to help the United States cope with the Great Depression.20 Since its creation, Social Security has evolved into a program that provides financial benefits to qualifying disabled persons, including some people with EOAD. Today, the Social Security Act provides the statutory basis for the creation and maintenance of SSDI and SSI.21 These are two programs that disburse Social Security benefits to qualifying disabled persons, including those afflicted with EOAD. The programs are administered by the Social Security Administration.

Social Security Disability Insurance

SSDI is intended to aid people who are unable to work for a significant period of time because of a disability.22 Qualifying disabled persons receive SSDI benefits according to their age and the amount of Social Security taxes they have paid. The type of disability and extent of disability are not used to determine the amount of SSDI benefits that are awarded. A person applying for SSDI benefits must be disabled for at least six months before he or she becomes eligible to receive benefits. Disability benefit awards are retroactive to the date six months after becoming disabled regardless of the intervening time period between disability onset and a finding of disability by Disability Determination Services (“DDS”) or a judge. Family members of disabled persons may also qualify for benefits under this program.23

Supplemental Security Income

SSI is a need-based program that can provide additional assistance to disabled persons below a certain income and resource threshold. The United States Treasury funds SSI. Unlike SSDI, a person may receive SSI benefits without ever having paid Social Security taxes. SSI does not require that a person have worked for any length of time before becoming disabled.24

MedicareMedicare was created in 1965. Medicare is a federally operated, health insurance-like program, which provides financial benefits for beneficiaries’ medical treatment and care needs. Medicare is only intended to provide some financial help to those who qualify. Medicare does not cover the costs of all Medicare services or long-term care. Known as the “health program for the elderly,”25 Medicare was originally designed to assist only the elderly in affording health care resources.26 In 1973, the program was expanded to provide assistance to people under sixty-five with qualifying disabilities.

Most Americans over sixty-five are eligible for Medicare, but those under sixty-five, particularly people with EOAD, must be eligible for SSDI before they are covered by Medicare. For disabled persons, coverage under Medicare begins automatically two years after becoming eligible to receive SSDI benefits. Medicare coverage persists as long as the qualifying disability lasts.

Like SSDI and SSI, Medicare acts as a safety net by preventing the financial ruin of Americans who require medical treatment.27 Although Medicare does not pay all medical expenses, it provides essential financial assistance for people who cannot earn employment wages. This is especially true for people with EOAD. Because of the age at which the disease strikes, and because it renders the afflicted unable to work, EOAD sufferers may not have the financial resources to support both daily family living expenses and medical treatment.

19 Social Security Act, 49 Stat. 620 (1935).20 Historical Background and Development of Social Security, Soc. Sec’y Admin., http://www.ssa.gov/history/briefhistory3.html (last accessed Dec. 12 2014).21 Social Security Act, 42 U.S.C. §§ 401-34, 1381-85. 22 The program is funded by the Federal Disability Insurance Trust Fund, which is funded by the Social Security tax on employment wages.

See 42 U.S.C. § 401.23 Social Security Admin., Disability Benefits, Pub. No. 05-10029 (2014), available at http://www.socialsecurity.gov/pubs/EN-05-10029.pdf. 24 Both SSDI and SSI require that for persons with EOAD to receive Social Security benefits, they must show that they are legally disabled when they

apply for benefits.25 Dennis W. Jahnigen & Robert H. Binstock, Economic and Clinical Realities: Health Care for Elderly People, in Too Old for Health Care?

Controversies in Medicine, Law, Economics, and Ethics 13, 17 (Robert H. Binstock & Stephen G. Post eds., 1991).26 Janet O’Keeffe, The Right to Health Care and Health Care Reform, in Health Care Reform: A Human Rights Approach 35, 37

(Audrey R. Chapman ed., 1994). 27 Robert H. Binstock, Too Old for Health Care?: Controversies in Medicine, Law, Economics, and Ethics (1991).

8

Qualifying for Federal Benefits

SOCIALSECURITY MEDICARE MEDICAID

If NO, and you have worked at

least 5 of the past 10 years

you may qualify for SSDI.

If you can do any work, even work outside of your �eld, you do not qualify

for SSDI.

If YES, you have 60 days from the time you

received notice of your denial

to appeal to the SSA. See "Appeals Process" section.

Your Medicare coverage will

begin automatically

24 months after you became

eligible for SSDI.

In most states, if you qualify for SSI, you qualify for Medicaid.

If you are not working, or your monthly salary is less than $1,527 (single) or $2,249 (married).

If you are working, and your monthly salary is more than $1,527 (single) or $2,249 (married).

Are you under 65? Are you under 65? Do you qualify for SSI?

Are you working?

You qualify

You qualify

Are you eligible for SSDI?

Are you above the income and asset theshold?

You may be able to

"spend down" your income

under the "Medically

needy" exception.

You may be eligible for

Supplemental Security

Income ("SSI").

If you are no longer able to do the work you did before, can you

do any other type of work?

Was your application

denied in the past 60 days?

You likely qualify

Have you been eligible for SSDI

for at least 24 months?

? ? ?

You will generally not be considered

for SSDI.

9

MedicaidMedicaid, like Medicare, was established in 1965 and covers some of the costs of long-term care. Medicaid is a health insurance program that operates by assisting people in paying for medical care and long-term care, including nursing home care. It is a joint program between the federal government and each state. Each state operates its own Medicaid program, but these programs must meet standards set by the federal government. However, states do have some flexibility in determining eligibility for Medicaid.28

In most states, those who are eligible for SSI are also eligible for Medicaid.29 In all states, eligibility is largely dependent on a person’s income and the value of that person’s assets; only those with a low income and asset level can qualify for Medicaid. Each state sets its own threshold for income and assets. In all states, the income and asset threshold is extremely low.30

Medicaid is a program that can substantially benefit people with EOAD by providing the financial means of obtaining long-term care, such as in a nursing home. However, meeting the low income and asset requirements can be extremely difficult for people with EOAD, especially if those people have families. So that one spouse may qualify for Medicaid while the other spouse may preserve some of the family’s savings, couples have turned to drastic measures and even divorce.31

Anticipated Time Frame

1. How do I apply for disability benefits?

There are two ways that you can apply for disability benefits. You can either:

• Apply online at http://www.socialsecurity.gov/; or

• Call the SSA’s toll-free number, 1-800-772-1213, to make an appointment to file a disability claim at your local Social Security office or to set up an appointment for someone to take your claim over the telephone.

The disability claims interview lasts about one hour. If you are deaf or hard of hearing, you may call their toll-free TTY number, 1-800-325-0778, between 7:00 a.m. and 7:00 p.m. on business days. If you schedule an appointment, they will send you a Disability Starter Kit to help you get ready for your disability claims interview.32

2. How long does it take to get a decision after I apply for disability benefits?

It takes at least three-to-five months to get a decision on your disability application. The time frame can vary depending on:

• The nature of your disability;

• How quickly the SSA can get your medical evidence from your doctor or other medical source;

• Whether it is necessary to send you for a medical examination; and

• Whether the SSA reviews your application for quality purposes.

If you are eligible for Social Security disability benefits, there is a five-month waiting period before your benefits begin. The SSA will pay your first benefit for the sixth full month after the date your disability is found. 

28 Affordable Care Act of 2010 expands Medicaid eligibility, which took effect January 1, 2014. It created a national Medicaid minimum eligibility level of 133% of the federal poverty level ($29,700 for a family of four in 2011) for nearly all Americans under age sixty-five.

29 Social Security Admin., Supplemental Security Income (SSI), Pub. No. 05-11000, at 10 (2012), available at http://www.socialsecurity.gov/pubs/EN-05-11000.pdf.

30 Eligibility Criteria Chart, Georgia Dep’t of Community Health, http://dsch.georgia.gov/eligibility-criteria-chart. See also 2014 Financial Limits—All Programs, http://dch.georgia.gov/sites/dch.georgia.gov/files/2014%20Financial%20Limits%20Chart%20Revised%203314_0_0.pdf.

31 See, e.g. Jane Neilson, A Patient’s Perspective on Genetic Counseling and Predictive Testing for Alzheimer’s Disease, 8 J. Genetic Counseling 37, 39 (1999); Liz Pulliam Weston, Should Grandma Divorce Grandpa, Kill Money (Apr. 10, 2007), http://klikmoney.blogspot.com/2007/04/should-grandma-divorce-grandpa.html.

32 The Disability Starter Kit is also available online at www.socialsecurity.gov/disability

10

Compassionate Allowances

Both SSDI and SSI require persons with EOAD to show that they are legally disabled when they apply for benefits.33 The SSA has created a list of conditions that qualify an applicant for disability benefits. This requires only a minimal showing of medical information related to the condition. A person with a condition on the list who receives benefits despite making a minimal showing of disability is said to receive a “Compassionate Allowance.” The initiative is a way to expedite the processing of SSDI and SSI disability claims for applicants whose medical conditions are so severe that their conditions obviously meet Social Security’s definition of disability. It is not a separate program from SSA’s two disability programs, SSDI and SSI. EOAD was added to the list of Compassionate Allowances effective March 1, 2010. The inclusion of EOAD on the list should improve access to benefits for people with EOAD.

There is no special procedure for receiving a compassionate allowance. A computer program reviews your application.34 Thus it is imperative to clearly state that the disability is “Early Onset Alzheimer’s Disease” as stated on the government website to trigger the compassionate allowance program. Applications that pass this review are sent to a special Quick Disability Determination (QDD) group for review and decision.

33 Supplementary Security Income (SSI), supra note 28.34 “[T]he computer program looks for certain information on your application, such as the name of your diagnosed medical condition, the type and

quantity of medications being taken, and personal information such as age, education, and work history.” Compassionate Allowance Initiative, Soc. Sec’y Disability Help, http://www.disability-benefits-help.org/glossary/social-security-disability-compassionate-allowance-initiative (last accessed Feb. 1, 2015).

?Has it been more than sixty days since you received notice that

your claim was denied?

Was your claim denied for medical reasons?

If YES, you may �le your appeal online.

If you were denied for non-medical reasons, you must �le Form SSA-561.

If YES, and you do not want to �le online, you must �le:

(1) Form SSA-561 (2) SSA-827; and (3) SSA-827.

If NO, you will have to start over and reapply at the

initial level and get denied all over again.

If YES, you must �le and complete your claim today.

See above.

If YES, has it been no more than sixty-�ve

days?

Appealing Your SSA Denial

11

If your disability claim is chosen for QDD, a QDD disability claims examiner will review it. If the QDD examiner approves your claim, a medical review may not be needed. If everything is clear and complete, your case could be approved within twenty days of applying. If your onset date (the date your disability began) is more than a few months past, the QDD may deny your claim and put it through the normal determination process.

Medicare

Medicare ensures that qualifying Americans with EOAD do not have to sacrifice proper medical treatment so that they can afford to care for their families. There is, however, one major disadvantage to Medicare: it has a two-year waiting period. The two-year period between the date SSDI benefits begin and the date of Medicare eligibility may place a significant economic burden on some people with EOAD. Many people may sacrifice medical treatment to afford being able to support a family. Some legislators have tried to eliminate the two-year wait.35 However, these efforts have yet to be successful.

Medicaid and Medically Needy and Spending Down

If a person’s income level is too high and initially disqualifies him or her from Medicaid, that person may meet the “medically needy” requirement that allows him or her to “spend down” income to qualify. The spend-down amount is similar to a deductible; after paying the spend-down amount-in general, any income you have that is in excess of that which is necessary to meet daily needs—Medicaid will cover any further care costs.

If you disagree with the SSA’s decision, you can appeal it, and ask them to look at your case again. That means you can ask them to look at your case again. When you ask for an appeal, the SSA will look at the entire decision, not just the part you believe is incorrect. If they find that their initial decision was wrong, they will change it.

35 Ending the Medicare Disability Waiting Period Act of 2009, S. 700, 1th Cong. (2009).

ReconsiderationThis is the �rst level of the appeals process for SSA since you've requested a review of the �rst decision. Here, a person who did not make the �rst decision will decide your case again.

Hearing by ALJ

If you're unhappy with the reconsideration decision, you can request a hearing before an ALJ (this can be done online). Before your hearing, you can submit additional evidence for the ALJ to consider. During the hearing, you may bring witnesses and be represented by counsel.

If you think the ALJ's decision or dismissal order is wrong, you may ask the Appeals Council to review your case. They may grant, deny, or dismiss your request for review. If they grant your request, they may either decide your case or return it to the ALJ for further action.

If you do not agree with the Appeals Council’s decision or denial of your request for review of the ALJ’s decision, you may �le a civil action in the U.S. District Court for the area where you live. This will be a federal case and no longer an administrative decision.

Review by Appeals Court

Federal Court Review

Levels of Appeal

12

There are four levels of appeal. If you are not satisfied with the decision at one level, you may appeal to the next. The levels are:

1. Reconsideration;

2. Hearing;

3. Appeals Council review; and

4. Federal court

If you disagree with the reconsideration decision, you may request a hearing. This hearing will be conducted by an Administrative Law Judge (“ALJ”) who has had no part in the original decision or reconsideration of your case.36 If you began this process pro se (without a lawyer), this would be a good time to retain counsel, as the issues, law, evidence, and facts required to adjudicate your case will become much more complicated in this state. The ALJ will make a decision after the hearing. You will receive a letter and a copy of the judge’s decision in the mail.

If you disagree with the hearing decision handed down by the ALJ, you may ask for review by the Social Security Appeals Council (“SSAC”).37 The SSAC looks at all requests for review , but it may deny a request if it believes the hearing decision was correct; if it denies your request for review,38 you will receive a letter explaining the denial. If the Appeals Council returns your case to an ALJ, you will receive a letter and a copy of the order.

After Qualifying for SSI or SSDI: Possible Family Benefits

Generally, benefits are not payable to your spouse unless your spouse is sixty-two years of age or older; this may be an issue for persons with EOAD. An exception for younger persons applies “if he or she is caring for your child under age sixteen or disabled and receiving Social Security benefits.”

Your child can get benefits if he or she is your biological child, adopted child, or dependent stepchild. In addition to the requirement that the parent be eligible for SS benefits, the child must also be:

• Unmarried

• Younger than age eighteen;

• Eighteen to nineteen years-old and a full-time student (no higher than grade twelve); or

• Eighteen or older and disabled (the disability must have started before age twenty-two)

36 20 C.F.R. §404.9 (subpart J).37 Currently, the Appeals Council is made up of approximately sixty-eight Administrative Appeals Judges, forty-two Appeals Officers, and several hundred

support personnel. 38 20 C.F.R. § 404.977.

13

Family and Medical Leave ActWhen you or a loved one experiences a serious health condition that requires you to take time off from work, the stress from worrying about keeping your job may add to an already difficult situation. Under the FMLA, an eligible employee is entitled to a maximum of twelve weeks of leave per twelve-month period. The FMLA guarantees the right of the employee to return to the same position or to an equivalent one.39 An employer must allow the individual to use any accrued paid leave first, but if that is insufficient to cover the entire period, then the employer should grant unpaid leave. The FMLA requires an employer to continue the employee’s health insurance coverage during the leave period, provided the employee pays his/her share of the premiums. FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor’s Employment Standards Administration. This agency investigates complaints of violations. If violations cannot be satisfactorily resolved, the Department may bring action in court to compel compliance.

To take FMLA leave, you must work for a covered employer. Generally, this means a private employer with at least fifty employees. Private employers with fewer employees are not covered, however, their employees may be covered by state

39 29 U.S.C. §§ 2601, 2612.

?Do you work for: (a) private employer with more than 50 employees;

OR (b) a government agency or public school?

Your employer is not covered by the FMLA and does not have to o�er FMLA leave.

Have you worked for the employer for at least 12

months?

Have you worked for your employer at least 1,250 hours in the last year?*

You are not eligible for FMLA leave

You are eligible for FMLA leave

You are not eligible for FMLA leave

Does your employer have 50 or more employees within 75

miles of the jobsite?

DOL Rights Am I Eligible For FMLA Leave?

14

The FMLA Leave Process

family and medical leave laws.40 Government agencies—including local, state, and federal employees41—are covered under the FMLA, regardless of the number of employees. If you work for a covered employer, there is additional eligibility criteria that you must meet to take FMLA leave.42 To be an eligible employee:

1. First, you must have worked for your employer for at least twelve months.43

2. Second, you must have worked for the employer for at least 1,250 hours in the twelve months before you take leave. This works out to an average of about twenty-four hours per week over the course of a year.

3. Last, you must work at a location where the employer has at least fifty employees within seventy-five miles of your worksite.44

It is important to point out that FMLA leave goes beyond caring for a family member. Such circumstances include:

1. Undergoing care and treatment for your own serious health condition; and

2. Awaiting approval of your request for disability retirement.45

40 However, Georgia is not among them (in general, most states in the Southeast are not among these either). Georgia employees only have the rights guaranteed by the FMLA.

41 This includes public elementary and secondary school employees.42 There are special exceptions for airline flight attendants and flight crew employees. “Due to non-traditional work schedules, airline flight attendants and

flight crew members are subject to special eligibility requirements under the FMLA. You meet the hours of work requirement if, during the 12 months prior to your need for leave, you have worked or been paid for at least 60% of your applicable monthly guarantee, and have worked or been paid for at least 504 hours, not including personal commute time, or time spent on vacation, medical or sick leave.” Wage & Hour Div., U.S. Dep’t of Labor, No. WH1506, The Employee’s Guide to the Family and Medial Leave Act 2 (2013) [hereinafter Employee’s Guide to the FMLA], available at http://www.dol.gov/whd/fmla/employeeguide.pdf.

43 You do not have to have completed twelve consecutive months of work; thus, seasonal work counts. However, generally if you have a break in your service that lasted more than seven years, you cannot count the period of employment prior to the seven-year break.

44 For example, even if your employer has more than fifty employees, if they are spread out and there are not fifty employees within seventy-five miles of where you work, you will not be eligible to take FMLA leave. This does not apply to government employees.

45 Family and Medical Leave Act, U.S. Dep’t of Commerce, http://hr.commerce.gov/Employees/Leave/DEV01_005926.

Step 1:You must notify your employer

when you know you need FLMA

leave.

Step 2:Your employer must

notify you about whether you are

eligible for FMLS leave within 5 business days.

Your employer must provide you with your

FMLA rights and responsibilities, as well

as any request for clari�cation.*

Step 3:You must provide a

completed certi�cation to your employer within 15

calendar days.

StopYour leave is not FMLA- protected(You may request leave again in the

future)

StopYour leave is not FMLA- protected

(You may request leave again in the future)

Step 4:Your employer must

notify you about whether your

leave has been designated as FMLA within 5 business days.

Step 5:Your leave is

FMLA-protected.

Step 6:When you return to

work, your employer must return you to

your same or identical job.

Certi�cationnot

requested

Certi�cationrequested

Noteligible

Notdesignated

Eligible

Designated

15

Requesting FMLA Leave

To take FMLA leave, you must provide your employer with appropriate notice. If you know in advance that you will need FMLA leave (for example, if you are planning to have treatment), you must give your employer at least 30 days advance notice. If you learn of your need for leave less than thirty days in advance, you must give your employer notice as soon as you can.46 When you need FMLA leave unexpectedly (for example, if a family member is injured in an accident), you must inform your employer as soon as you can. You must follow your employer’s usual notice or call-in procedures unless you are unable to do so (for example, if you are receiving emergency medical care).

While you do not have to specifically ask for FMLA leave for your first leave request, you do need to provide enough information so your employer is aware it may be covered by the FMLA. Once a condition has been approved for FMLA leave and you need additional leave for that condition, your request must mention that condition or your need for FMLA leave. If you don’t give your employer enough information to know that your leave may be covered by the FMLA, your leave may not be protected. You do not have to tell your employer your diagnosis, but you do need to provide information indicating that your leave is due to an FMLA-protected condition.

Communication

To make the FMLA process run smoothly, it is important to maintain ongoing communication with your employer. Both employer and employee have to follow guidelines about notifying the other when FMLA leave is being used.

If your need for FMLA leave changes while you are out (e.g. your doctor decides that you can return to work earlier than expected), you need to inform your employer. Also, your employer may require you to provide periodic updates on your status and intent to return to work.

Within five business days of your first leave request, your employer must notify you if you are eligible for FMLA leave. If the employer says that you are not eligible, it must state at least one reason why you are not eligible. At the same time that your employer gives you an eligibility notice, it must also give you a notice of your rights and responsibilities under the FMLA. This notice must include all of the following:

1. A definition of the twelve-month period the employer uses to keep track of the FMLA usage.47 You need to know which way your employer measures the twelve-month window so that you can be sure of how much FMLA leave you have available when you need it;

46 Generally, either the day you learn of the need or the next work day.47 “It can be a calendar year, 12 months from the first time you take leave, a fixed year such as your anniversary date, or a rolling 12-month period

measured backward from the date you use FMLA leave.” Employee’s Guide to the FMLA, supra note 43, at 8.

Medical Certification At A Glance

You must provide a completed certi�cation to

your employer within 15 days.

Your employer must designate your leave if it is

FMLA-protected.

Your employer must notify you if a

certi�cation is required.

Correct any de�ciencies in your certi�cation identi�ed

by your employer within seven days.

Obtain a second medical opinion if your employer

doubts the validity of your certi�cation.

Obtain a third medical opinion if the �rst and second opinions di�er.

STEP1

STEP2

STEP3

16

2. Whether you will be required to provide medical certification from a health care provider;

3. Your right to use paid leave;

4. Whether your employer will require you to use your paid leave;

5. Your right to maintain your health benefits and whether you will be required to make premium payments; and

6. Your right to return to your job at the end of your FMLA leave.

In all, when your employer has the information necessary to determine if your leave is FMLA protected, it must notify you whether the leave will be designated as FMLA leave and, if possible, how much leave will be counted against your FMLA entitlement. If your employer determines that your leave is not covered by FMLA, it must notify you of that determination.

Medical Certification

If your employer requests medical certification, you only have fifteen calendar days to provide it in most circumstances. Further, you are responsible for the cost of getting the certification from a health care provider and for making sure that the certification is provided to your employer. By failing to provide the requested medical certification, your FMLA leave may be denied.

The medical certification must include some specific information, including:

1. Contact information for the health care provider;

2. When the serious health condition began;

3. How long the condition is expected to last;

4. Appropriate medical facts about the condition (which may include information on symptoms, hospitalization, doctors’ visits, and referrals for treatment);

5. When you are unable to work or your family member is in need of care; and

6. Whether you need leave continuously or intermittently. (If you need to take leave a little bit at a time, the certification should include an estimate of how much time you will need for each absence, how often you will be absent, and information establishing the medical necessity for taking such intermittent leave.)

If your employer finds that necessary information is missing from your certification, it must notify you in writing of what additional information is needed to make the certification complete, you must provide the missing information within seven calendar days.

If your employer has concerns about the validity of your certification, it may request a second opinion, but it must cover the cost. Your employer may request a third opinion if the first and second opinion differ, but it must cover the cost.

If your need for leave continues for an extended period of time, or if it changes significantly, your employer may require you to provide an updated certification.

Covered Under both the ADA and the FMLA

Employees may have rights under both laws if they meet the definition of “disability” (ADA) and “serious health condition” (FMLA). Workers who have used up FMLA leave can still have rights under the ADA if they meet the ADA definition of a person with a disability. Accommodation is one such right. Additional leave (beyond the worker’s FMLA leave) could be an accommodation that must be provided under the ADA. Employers will determine an employee’s rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.48

48 “Many employees eligible for FMLA leave will not be entitled to leave as a reasonable accommodation under the ADA, either because they do not meet

17

Under the ADA, an employee who needs leave related to his/her disability is entitled to such leave if there is no other effective accommodation and the leave will not cause undue hardship. An employer must allow the individual to use any accrued paid leave first, but, if that is insufficient to cover the entire period, then the employer should grant unpaid leave. An employer must continue an employee’s health insurance benefits during their leave period only if it does so for other employees in a similar leave status. As for the employee’s position, the ADA requires that the employer hold it open when the employee is on leave unless it can show that doing so causes undue hardship. When the employee is ready to return to work, the employer must allow the individual to return to the same position (assuming that there was no undue hardship in holding it open): if the employee is still qualified.49

Under the FMLA, an eligible employee is entitled to a maximum of twelve weeks of leave per twelve month period. The FMLA guarantees the right of the employee to return to the same position or to an equivalent one.50 An employer must allow the individual to use any accrued paid leave first, but if that is insufficient to cover the entire period, then the employer should grant unpaid leave. The FMLA requires an employer to continue the employee’s health insurance coverage during the leave period, provided the employee pays his/her share of the premiums.

Example A: An employee with an ADA disability needs thirteen weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for twelve weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the thirteenth week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial twelve-week absence, along with other undue hardship factors.

Example B: An employee with an ADA disability has taken ten weeks of FMLA leave and is preparing to return to work. The employer wants to put her in an equivalent position rather than her original one. Although this is permissible under the FMLA, the ADA requires that the employer return the employee to her original position. Unless the employer can show that this would cause an undue hardship, or that the employee is no longer qualified for her original position (with or without reasonable accommodation), the employer must reinstate the employee to her original position.

Example C: An employee with an ADA disability has taken twelve weeks of FMLA leave. He notifies his employer that he is ready to return to work, but he no longer is able to perform the essential functions of his position or an equivalent position. Under the FMLA, the employer could terminate his employment,51 but under the ADA the employer must consider whether the employee could perform the essential functions with reasonable accommodation.52

How to File a Complaint

The U.S. Department of Labor’s Wage and Hour Division is responsible for administering and enforcing the Family and Medical Leave Act for most employees.

Your employer is prohibited from interfering with, restraining, or denying the exercise of FMLA rights, retaliating against you for filing a complaint and cooperating with the DOL, or bringing a private action to court. You should contact the Wage and Hour Division immediately if your employer retaliates against you for engaging in any of the above legally protected activities.

the ADA’s definition of disability or, if they do have an ADA disability, the need for leave is unrelated to that disability.” Reasonable Accommodation and Undue Hardship Under the ADA, supra note 6, at 30.

49 In other words, the employee can perform the essential functions of the position with or without reasonable accommodation. 50 29 C.F.R. §§ 825.214(a), 825.215.51 29 C.F.R. § 825.702(c)(4). 52 E.g. Additional leave, part-time schedule, job restructuring, or use of specialized equipment.

18

Veterans’ and Military Benefits Veterans’ Affairs

Care for Veterans with Alzheimer’s or dementia is provided throughout the full range of VA health care services. Depending on the Veteran’s needs, services may include home-based primary care, homemaker and home health aide, respite, adult day health care, outpatient clinic, inpatient hospital, nursing home, or hospice care. Caregiver support is an essential part of all of these services.53

Military Caregiver Leave The FMLA entitles eligible employees who work for covered employers to take unpaid, job-protected leave to care for a family member who is a covered service member or veteran with a “serious injury or illness.” FMLA leave for this purpose is called “military caregiver leave.”54

Military caregiver leave allows an eligible employee who is the spouse, son, daughter, parent, or “next of kin” of a covered service member or veteran with serious injury or illness to take up to a total of twenty-six work-weeks of unpaid leave during a “single 12-month period” to provide care for the service member or veteran.

The “next of kin” of a covered service member or veteran is the nearest blood relative, other than their spouse, parent, son, or daughter, in the following order of priority:

1. A blood relative who has been designated in writing by the service member as the next of kin for FMLA purposes;

2. Blood relative who has been granted legal custody of the service member;

3. Brothers and sisters;

4. Grandparents;

5. Aunts and uncles; and

6. First cousins

When the service member or veteran designates in writing a blood relative as next of kin for FMLA purposes, that individual is deemed to be their only FMLA next of kin. When they have not designated in writing a next of kin for FMLA purposes, and there are multiple family members with the same level of relationship to the service member or veteran, all of such family members are considered their next of kin and may take FMLA leave to provide care to the service member or veteran.55

Current Service Member Under FMLA

A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who is receiving medical treatment, recuperation, therapy, or is in outpatient status, or is on the temporary disability retired list for a serious injury or illness. A serious injury or illness is one that is incurred by a service member in the line of active duty that may cause the service member to be medically unfit to perform the duties of his or her office, grade, rank, or rating. A serious injury or illness also includes injuries or illnesses that existed before the service member’s active duty and that were aggravated by service in the line of active duty.56

Serious Injury or Illness

A serious injury or illness is incurred by a service member in the line of active duty that may cause the service member to be medically unfit to perform the duties of his or her office, grade, rank, or rating. A serious injury or illness also includes injuries or illnesses that existed before the service member’s active duty and that were aggravated by service in the line of active duty.

53 Geriatrics and Extended Care, U.S. Dep’t of Veterans Affairs, http://www.va.gov/GERIATRICS/Alzheimer’s_and_Dementia_Care.asp. 54 29 C.F.R. § 825.127.55 Id. § 825.127(d)(3). 56 Wage & Hour Div., U.S> Dep’t of Labor, Fact Sheet #28M(a): Military Caregiver Leave for a Current Service member under the Family and Medical Leave

Act (2013), available at http://www.dol.gov/whd/regs/compliance/whdfs2ma.pdf.

19

Certification Requirements

An employer may require that leave to care for a covered service member be supported by a certification completed by an authorized health care provider or by a copy of an Invitational Travel Order (ITO) or Invitational Travel Authorization (ITA) issued to any member of the covered service member’s family. Employees may use the U.S. Department of Labor’s optional form WH-385. An authorized health care provider is a:

• United States Department of Defense (“DoD”) health care provider;

• United States Department of Veterans Affairs (“VA”) health care provider;

• DoD TRICARE network authorized private health care provider;

• DoD non-network TRICARE authorized private health care provider; or

• Non-military-affiliated health care provider.

An employer may request a second or third opinion of a current service member’s serious injury or illness only when a certification is provided by a non-military affiliated health care provider.

Veteran Under FMLA

A veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness is a covered veteran if he or she was:

• A member of the Armed Forces (including a member of the National Guard or Reserves);

• Discharged or released under conditions other than dishonorable; and

• Discharged within the five-year period before the eligible employee first takes FMLA military caregiver leave to care for him or her.57

Serious Injury or Illness

A serious injury or illness means an injury or illness that was incurred by the covered veteran in the line of duty on active duty in the Armed Forces or that existed before the veteran’s active duty and was aggravated by service in the line of duty on active duty, and that is either:

• A continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered them unable to perform the duties of their office, grade, rank, or rating or;

• A physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service- Related Disability Rating (VASRD) of fifty percent or greater,58 and the need for military caregiver leave is related to that condition; or

• A physical or mental condition that substantially impairs the veteran’s ability to work because of a disability or disabilities related to their military service, or would do so absent treatment; or

• An injury that is the basis for the veteran’s enrollment in the Department of Veterans Affairs Programs of Comprehensive Assistance for Family Caregivers.59

Any one of these definitions meets the FMLA’s definition of a serious injury or illness for a covered veteran regardless of whether the injury or illness manifested before or after the individual became a veteran.

57 Wage & Hour Div. U.S. Dep’t of Labor, Fact Sheet #28M(B): Military Caregiver Leave for a Veteran Under the Family and Medical Leave Act, available at http://www.dol.gov/whd/regs/compliance/whdfs28mb.pdf. “For a veteran who was discharged prior to March 8, 2013, the effective date of the FMLA Final Rule, the period between October 28, 2009 and March 8, 2013 will not count towards the determination of the five-year period. For example, if a service member retired on October 28, 2007, he or she would have had three years remaining of the five-year period on October 28, 2009. The family member requesting FMLA leave will have three years to begin military caregiver leave starting on March 8, 2013. Likewise, if a service member was discharged on December 1, 2010, the five-year period will begin on March 8, 2013 and extend until March 8, 2018.” Id.

58 The VASRD is used by the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

59 29 C.F.R. §§ 825.127(c)(2)(i)-(iv).

20

Certification Requirements

An employer may require that leave to care for a veteran be supported by a certification completed by an authorized health care provider. An employee may submit a copy of a VASRD rating determination or enrollment documentation from the VA Program of Comprehensive Assistance for Family Caregivers to certify that the veteran has a serious injury or illness. This documentation is sufficient regardless of whether the employee is the named caregiver. However, if the employee submits such documents, the employee may still be required to provide confirmation of family relationship and documentation of discharge date and status for a complete certification. Employees may use the U.S. Department of Labor’s optional form WH-385-V. An authorized health care provider is a:

• United States Department of Defense (“DoD”) health care provider;

• United States Department of Veterans Affairs (“VA”) health care provider,

• DoD TRICARE network authorized private health care provider;

• DoD non-network TRICARE authorized private health care provider; or

• Non-military affiliated health care provider.

An employer may request a second or third opinion of a veteran’s serious injury or illness only when a certification is provided by a non-military-affiliated health care provider.

Legal CapacityOne of the elements of a contract is capacity. Capacity includes the legal and mental capacity to enter into a contract. If one of the parties lacks the requisite capacity, the contract is voidable. Generally, this requires that a person entering into a contract must possess sufficient mental ability to appreciate the nature and consequences of his or her transactions. This is of great significance for Alzheimer’s patients.60

While it is important for everyone to plan for the future, legal plans are especially vital for a person diagnosed with dementia. The earlier you begin planning, the more likely it is that the person with EOAD will be able to participate. Further, seeking the counsel of a licensed attorney who specializes in these fields will make the process much easier. A lawyer can help determine what level of legal capacity is required for a person to sign a particular document, as it can vary from one document to another. Some of the legal planning includes: planning for health care and long-term care; making arrangements for finances and property; and naming another person to make decisions on behalf of the person with dementia.

Durable Power of Attorney

If you (or the individual in question) have been diagnosed with EOAD, but are still mentally competent (by legal standards), you should consider entering into a durable61 power of attorney. This allows a trusted individual to make legal, financial, and health care-related decisions and sign legal documents on your behalf (which will be needed once dementia sets in). The durable power of attorney is not possible if your loved one is mentally incompetent (in which case a legal guardianship, a much more complicated process, is necessary).

It is important to note that the PoA does not give the appointed person (agent) the authority to override the decision making of the person with dementia (principal). The person with EOAD, experiencing dementia, maintains the right to make their own decisions—as long as they have legal capacity—even if the decisions are not what others believe are good decisions.

Once a person with dementia is no longer able to make decisions, the agent is authorized to manage and make decisions about the income and assets of the principal. This agent is responsible for acting according to the person’s wishes and in that person’s best interest.

A PoA for health care allows a person with dementia to name a “health care agent” to make health care decisions on his or her behalf when he or she is incapable of doing so. These decisions include choosing: doctors and other health care providers; types of treatments; and care facilities.

60 Vaughn E. James, The Alzheimer’s Advisor: A Caregiver’s Guide to Dealing with the Tough Legal and Practical Issues 44 (2008). 61 Power of attorney documents should be written so that they are “durable,” meaning that they are valid even after the principal is incapacitated and can no

longer make decisions for themselves.

21

For a person in the later stages of EOAD, the health care agent may also make end-of-life decisions, such as providing nutrition through a feeding tube or giving “do not resuscitate” (“DNR”) instructions to health care providers. These decisions can be difficult for families to make when the time comes. Help avoid family disagreements and distress by having open and candid conversations early on so everyone is aware of the person with EOAD’s end-of-life plans.

Legal Guardianship or Conservatorship

A guardian or conservator is appointed by a court to make decisions about a person’s care and property. This is generally considered when a person with EOAD is no longer able to provide for his or her own care and either the family is unable to agree upon the type of care needed, or there is no family.

Acquiring guardianship takes time. It involves enlisting the help of an attorney and testifying in court for guardianship proceedings. Not only does a guardian make health care and financial decisions, a guardian also makes sure the person’s day-to-day needs for safety, food, shelter and care are met. Guardians are responsible to and supervised by the court.

The rules surrounding guardianship vary by state. Any family considering guardianship or conservatorship should consult with an elder care or family law attorney familiar with the guardianship process in that state.

Capacity to Make or Execute a Will: Testamentary Capacity

The mental ability to make and execute a will is called “testamentary capacity.” Wills are often challenged when it is suspected the “testator”—the person who signed the will—lacked testamentary capacity at the time the will was signed.

Find out if the person with EOAD understands the document and the consequences of signing it. Make sure there is an understanding of what is being explained and what is being asked of them. Statutes and case law may vary among different jurisdictions, but testamentary capacity generally requires that the testator was aware of the following when signing the will:

1. The extent and value of their property;

2. Those who are natural beneficiaries of their estate (next of kin); and

3. The disposition he or she is making (in other words, he or she must have the ability to make a reasonable judgment based on the elements listed above).

Further, it is important to take inventory of already existing legal documents. You should verify whether living wills, trusts, powers of attorney, etc. were signed before the diagnosis and/or onset date. The person may no longer remember having completed them. Even if legal documents were completed in the past, it is important to review them for necessary corrections and/or updates.

Living Trust

A living trust is another way for the person to give instructions for how his or her estate should be handled upon death. Depending on state law and an individual’s personal circumstances, a living trust may allow an estate to avoid probate (i.e., the process used by the court to distribute the property of a person who has died).62

The person who creates the trust (called a grantor or trustor) will appoint himself (and possibly someone else) as trustee(s). If a single trustee is designated, the trust document should also specify a successor trustee, who will take over when/if the initial trustee is unable to serve due to incapacity or other reasons. A trustee is usually a person but may also be an institution such as a bank. The trustee is responsible for carefully managing the property (assets) of the trust.

To properly deal with living trusts, consult a specialist such as an elder law attorney or financial advisor.

62 It may or may not provide tax advantages.

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Fitness to Drive a Car or Perform Other Tasks

Caretakers of persons with EOAD often worry about their loved one’s safety while driving a car; or engage in other activities that may prove treacherous if done with a diminished mental capacity. Assessing someone’s mental competence is much more difficult regarding driving an automobile. Since the only legal standard for maintaining a driver’s license in most states is to complete an application and pass the vision test when you’re sixteen, adults exhibiting signs of dementia usually are not restricted from driving at the administrative level. This means that the family typically has to take a more active role in enforcing a no-driving decision.

A handful of states, including New York and Florida, have programs designed to help the doctors and families of adults with dementia make such decisions. Some states, however, require a driving test for elderly drivers (specific age set by state law).63 Check with your state’s driver’s licensing-issuing agency for more information.

Short-Term and Long-Term Disability Benefits

Many employers provide short-term disability coverage to employees. Short-term disability coverage lasts for a period ranging from a few days to a year.64 However, this coverage is dependent on the company’s particular benefit structure along with the employee’s length of employment.65 For example, some companies only provide short-term disability benefits to employees who have completed six full months of employment and used the entirety of their sick leave. The limits of short-term disability coverage vary so it is imperative to review the specific terms and conditions of your policy.

When short-term disability coverage ends, an employee can potentially receive long-term disability coverage if she is unable to return to work. Generally, an employee receiving long-term disability benefits will receive a specific amount (at least half of her salary) every month. Long-term disability coverage continues until an employee reaches age 65, retires, or is able to return to work.66

An employee can simultaneously receive short-term disability coverage along with federal benefits. For instance, an employee could receive short-term disability coverage and benefits from the Family and Medical Leave Act (FMLA) (discussed above) at the same time. Short-term disability coverage would provide the employee with income replacement while the FMLA would protect the employee’s position.67 Make sure to review your private disability coverage along with any applicable federal benefits to ensure that you are receiving as much assistance as possible.

63 For instance, in Illinois, at age seventy-five, drivers must take a road test and eye exam to renew a license. See 625 Ill. Comp. Stat. Ann. 5/6-109(c)(West 2011). However, persons with EOAD are still generally too young to face this, as most of these restrictions do not begin until someone is in their sixties or seventies. For a list of license restrictions by state, see Older Drivers: License Renewal Procedures, Insurance Institute for Highway Safety, http://www.iihs.org/iihs/topics/laws/olderdrivers.

64 Consumer Federation of America, Long-Term Disability Income Insurance: Financial Protection for You & Your Family 2, http://www.consumerfed.org/pdfs/ltdbrochure.pdf (last accessed Mar. 7, 2015).

65 Id. 66 Id. at 3. 67 University of Pittsburgh, Family Medical Leave Act (FMLA) and Short Term Disability for Staff Maternity/Paternity Leave, http://www.hr.pitt.edu/worklife/

caring-fam/fmla-std-i (last accessed Mar. 6, 2015).

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Federal and Possible Private Disability Benefits Timeline68

The timeline provided below is meant to provide a brief overview of how federal and private disability benefits interact with each other. This chart is intended to serve as a point of reference and does not include every specification and deadline that individuals must comply with in order to receive benefits. Furthermore, these deadlines may vary depending on your insurance company’s specifications. Be sure to consult with legal counsel and review your insurance coverage to determine specific filing deadlines and requirements.

First issue arises at work concerning • Review your insurance coverage for filing deadlines and requirements Early Onset Alzheimer’s Disease diagnosis (ie. missed deadlines, suspension, etc.) • Consult with legal counsel to determine your options Date of Diagnosis • File FMLA with employer

• File short-term disability (STD) application • FMLA can protect your position while you receive income

replacement through your short-term disability plan.

2 weeks • Compile necessary financial and medical documentation

• Visit your physician and complete necessary paperwork to comply with your insurance company’s requirements

15-30 days • STD payments may begin

• Apply for Social Security Disability benefits

• In order to qualify: You must be unable to do any substantial work because of your medical condition and your medical condition must have lasted, or be expected to last, at least 1 year, or be expected to result in death.69

Approx. 45 days • Confirm the status of your Social Security Disability application

• If you are denied, appeal the decision

Approx. 2 months • File a long-term disability application with your insurance company

Approx. 3 months • FMLA protection and STD income replacement end (this timeframe can vary depending on your employer’s specifications and your length of employment)

• Long-term disability (LTD) payments may begin

Approx. 6 months • Social Security Disability Insurance (SSDI) benefit waiting period ends

• Disability benefit awards are retroactive for this waiting period

• Coverage under Medicare begins automatically 2 years after becoming eligible to receive SSDI benefits

12 months • * As described above, the Social Security Disability benefit qualification period ends at the one-year mark

Approx. 24 months • LTD payments may end based on your personal insurance coverage

Approx. 29 months • * As described above, individuals who received SSDI become eligible for Medicare

68 Patient Advocate Foundation, Your Guide to the Disability Process (2004) available at http://www.patientadvocate.org/requests/publications/ Guide-To-Disability-Process.pdf.

69 SOCIAL SECURITY ADMIN., What You Should Know Before You Apply for Social Security Disability Benefits, available at https://www.ssa.gov/disability/Documents/Factsheet-AD.pdf.

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Concluding Thoughts

The interaction between employment laws, federal benefits and privately sponsored disability plans is complicated. The Americans with Disabilities Act along with Medicare and Social Security benefits represent a complex system of resources that individuals with Early Onset Alzheimer’s Disease and their caregivers must learn to navigate. The process of making claims and applying for benefits is overwhelming especially when many people do not understand Early Onset Alzheimer’s Disease. Due to the multi-faceted nature of these employment laws and federal benefits, obtaining legal counsel to ensure that the impacted person does not get denied essential benefits and rights is critical.

Employment laws, federal benefits and privately sponsored disability plans described within this guide are not mutually exclusive and may apply simultaneously. Therefore, you must determine which law gives you the most benefits. As mentioned earlier, both the FMLA and the ADA require a covered employer to grant medical leave to an employee in certain circumstances. The FMLA covers private employers with 50 or more employees. The ADA and Title VII cover private employers with 15 or more employees. Thus, only those private employers with 50 or more employees are covered concurrently by the FMLA, the ADA and Title VII.

When an overlap exists between coverage provided by the FMLA and ADA, it is imperative for you to determine (1) which law will give you the most assistance or (2) if it is possible to receive coverage under both laws. Employees who have used FMLA leave may still have rights under the ADA if they meet the ADA definition of a person with a disability. An employer will review an employee’s rights under each statute and determine if an overlap is possible.

Additionally, it is possible to receive benefits concurrently under FMLA and your private short term disability plan. FMLA leave is unpaid. However, FMLA will protect your position while you are able to receive income replacement through your short-term disability plan. This concurrent coverage will begin on the first day that FMLA and your short-term disability coverage is triggered. Promptly review your insurance plan to determine whether you may receive this extended short-term disability coverage.

Early Onset Alzheimer’s Disease presents a series of difficult challenges for families who are forced to make important financial and medical decisions much sooner than expected. Each situation is unique, and there is not an all-inclusive model for handling this challenging process. The benefits that you might be entitled to receive are dependent on your particular situation. For example, veterans and military caregivers may also be eligible to receive additional resources through the Veterans’ Health Administration and specific military provisions of the FMLA. In order to ensure that you receive as many benefits as possible, it is important to understand how these laws can be effectively utilized. In sharing their personal stories, our families were adamant that seeking legal counsel was essential for handling this process. Hiring an attorney to help you sift through these timesensitive resources will ensure that you receive as much assistance as possible.

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Appendices

Appendix 1: List of EEOC Field Offices*

Atlanta District Office (404) 331-6408 100 Alabama Street, SW, Suite 4R30

Savannah Local Office (912) 652-4234 7391 Hodgson Memorial Drive, Suite 200

Birmingham District Office (205) 731-0082 1130 22nd Street South, Suite 2000

Jackson Area Office (601) 965-4537 100 West Capitol Street, Suite 338

Mobile Local Office (251) 690-2585 63 South Royal Street, Suite 504

Charlotte District Office (704) 344-6682 129 West Trade Street, Suite 400

Raleigh Area Office (919) 856-4064 434 Fayetteville Street #700

Greensboro Local Office (336) 333-5174 2303 W. Meadowview Road, Suite 201

Greenville Local Office (864) 241-4400 15 South Main St., Suite 530

Norfolk Local Office (757) 441-3470 200 Branby St., Suite 739

Richmond Local Office (804) 278-4651 3600 West Broad St., Room 229

Chicago District Office (312) 353-2713 500 W. Madison Street, Suite 2800

Milwaukee Area Office (414) 297-1111 310 W. Wisconsin Avenue, Suite 800

Minneapolis Area Office (612) 335-4040 330 South Second Ave., Suite 430

Dallas District Office (214) 655-3355 207 S. Houston, 3rd Floor

San Antonio Field Office (210) 281-7600 5410 Fredericksburg Rd., Suite 200

El Paso Area Office (915) 832-4001 4171 N. Mesa St., Bldg C, Suite 100

Houston District Office (713) 653-3320 1919 Smith Street, 7th Floor

New Orleans Field Office (504) 589-2329 701 Loyola Avenue, Room 600

Indianapolis District Office (317) 226-7212 101 W. Ohio Street, Suite 1900

Detroit Field Office (313) 226-4600 477 Michigan Avenue, Room 1540

Cincinnati Area Office (513) 684-2851 550 Main St., Suite 10019

Louisville Area Office (502) 582-6082 600 Dr. Martin Luther King Jr. Pl, Suite 268

Los Angeles District Office (213) 894-1000 255 E. Temple, 4th Floor

Fresno Local Office (559) 487-5793 1265 West Shaw Ave., Suite 103

Honolulu Local Office (808) 541-3120 300 Ala Moana Blvd, Rm. 7-127

Las Vegas Local Office (702) 388-5099 333 Las Vegas Blvd., S, Ste. 8112

San Diego Local Office (619) 557-7235 401 B St., Suite 1550

*The EEOC’s headquarters’ is in Washington, D.C. The toll free number for complaints is: 1-800-669-4000. The following is a list of all of the local offices where you can file a claim.

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Appendix 1: List of EEOC Field Offices* (continued)

Memphis District Office (901) 544-0115 1407 Union Avenue, Suite 621

Little Rock Area Office (501) 324-5060 425 West Capitol Avenue, Suite 625

Nashville Area Office (615) 736-5820 50 Vantage Way, Suite 202

Miami District Office (305) 536-4491 2 S. Biscayne Boulevard, Suite 2700

Tampa Field Office (813) 228-2310 501 E. Polk St., Rm. 1020

San Juan Local Office (787) 771-1464 525 F.D. Roosevelt Avenue, Suite 1202

New York District Office (212) 741-8815 201 Varick Street, Suite 1009

Boston Area Office (205) 731-0082 1 Congress Street, Room 475

Newark Area Office (973) 645-6383 1 Newark Center, 21st Floor

Buffalo Local Office (716) 551-4441 6 Fountain Plaza, Suite 350

Philadelphia District Office (215) 440-3600 21 South 5th St., Suite 900

Baltimore Field Office (410) 962-3932 10 S. Howard Street, 3rd Floor

Cleveland Field Office (216) 522-2001 1660 W. 2nd Street, Suite 850

Pittsburgh Area Office (412) 644-3444 100 Liberty Ave., Suite 300

Phoenix District Office (602) 640-5000 4520 N. Central Avenue, Suite 300

Denver Field Office (303) 866-1300 303 E. 17th Avenue, Suite 510

Albuquerque Area Office (505) 248-5201 505 Marquette Street, NW, Suite 900

San Francisco District Office (415) 535-5100 901 Market Street, Suite 500

Seattle Field Office (206) 220-6883 909 1st Avenue, Suite 400

Oakland Local Office (510) 637-3230 1301 Clay St., Suite 1170-N

San Jose Local Office (408) 291-7352 96 North 3rd St., Suite 200

St. Louis District Office (314) 539-7800 1222 Spruce, Suite 8100

Kansas City Area Office (913) 551-5655 400 State Avenue, Suite 905

Oklahoma City Area Office (405) 231-4911 210 Park Ave., Suite 1350

Washington Field Office (202) 275-7377 1400 L Street, NW, Suite 200

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Appendix 2: EEOC Statute of Limitation and Family and Medical Leave Laws by State

State Extension for Extension for Comments State Employees? Private Employees?

Alabama No No No state FMLA

Alaska Yes Yes 365 days against employers with less than 15 employees. No state FMLA

Arkansas No No No state FMLA

Arizona Yes Yes 180 days against employers with less than 15 employees. No state FMLA

California Yes Yes 365 days against employers with less than 15 employees. Has extensive state FMLA and Temporary Disability Insurance and Paid Family Leave

Colorado Yes Yes 180 days against employers with less than 15 employees. State FMLA for domestic violence, adoption leave, and small necessities

Connecticut Yes Yes 180 days against employers with less than 15 employees. State FMLA covers family and medical, military, pregnancy disability, and paid sick leave

Delaware Yes Yes 90 days against employers with less than 15 employees No state FMLA

Florida Yes Yes No state FMLA, except for domestic violence

Georgia Yes No No state FMLA

Hawaii Yes Yes 180 days against employers with less than 15 employees. State FMLA covers family and medical, pregnancy disability, and Hawaii Temporary Disability Insurance

Idaho Yes Yes 365 days against employers with less than 15 employees. No state FMLA

Illinois Yes Yes 180 days against employers with less than 15 employees. State FMLA covers military family leave, domestic violence, and small necessities

Indiana Yes Yes 180 days against employers with less than 15 employees (with exceptions in certain counties). State FMLA covers military family leave

Iowa Yes Yes 180 days against employers with less than 15 employees. State FMLA covers pregnancy disability leave

Kansas Yes Yes 6 months days against employers with less than 15 employees. No state FMLA

Kentucky Yes Yes 180 days against employers with less than 15 employees (with exceptions in certain counties). State FMLA covers adoption leave

Louisiana Yes Yes State FMLA allows individual to take time off for pregnancy disability and for small necessities leave

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Appendix 2: EEOC Statute of Limitation and Family and Medical Leave Laws by State

State Extension for Extension for Comments State Employees? Private Employees?

Maine Yes Yes 180 days against employers with less than 15 employees. State FMLA covers family and medical, military, and domestic violence

Maryland Yes Yes 180 days against employers with less than 15 employees (except in Montgomery County, where the time limit for filing is one year). State FMLA allows for adoption and family military leave

Massachusetts Yes Yes 180 days against employers with less than 15 employees. State FMLA covers maternity & adoption, and small necessities

Michigan Yes Yes 180 days against employers with less than 15 employees. No state FMLA

Minnesota Yes Yes One year against employers with less than 15 employees in Minnesota and the Cities of Minneapolis and St. Paul. State FMLA covers family and medical, military family leave, and small necessities

Mississippi No No No state FMLA

Missouri Yes Yes 180 days against employers with less than 15 employees. No state FMLA

Montana Yes Yes 180 days against employers with less than 15 employees. State FMLA allows pregnancy disability leave

Nebraska Yes Yes 180 days against employers with less than 15 employees. State FMLA for military families

Nevada Yes Yes 300 days against employers with less than 15 employees. State FMLA allows parents to take off for children’s school activities

New Hampshire Yes Yes 180 days against employers with less than 15 employees. State FMLA covers pregnancy

New Jersey Yes Yes 180 days against employers with less than 15 employees. State FMLA cover Family and medical leave, domestic violence, and Temporary Disability Insurance and Paid Family Leave

New Mexico Yes Yes 180 days against employers with less than 15 employees. No state FMLA, except for domestic violence

New York Yes Yes 365 days against employers with less than 15 employees. State FMLA covers military, adoption, and New York Temporary Disability Insurance

North Carolina Yes No State FMLA only covers domestic violence and small necessities

North Dakota Yes Yes 180 days against employers with less than 15 employees. No state FMLA

Ohio Yes Yes 6 months days against employers with less than 15 employees. State FMLA allows for military family leave

Oklahoma Yes Yes 180 days against employers with less than 15 employees. No state FMLA

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State Extension for Extension for Comments State Employees? Private Employees?

Oregon Yes Yes 365 days against employers with less than 15 employees. State FMLA covers medical, domestic violence, and military leave

Pennsylvania Yes Yes 180 days against employers with less than 15 employees. No state FMLA

Rhode Island Yes Yes 365 days against employers with less than 15 employees. State FMLA covers family and medical, military, small necessities, and Rhode Island Temporary Disability and Caregiver Insurance Program

South Carolina Yes Yes There is no state FMLA

South Dakota Yes Yes 180 days against employers with less than 15 employees in the State of South Dakota and the City of Sioux Falls, South Dakota, except the State of South Dakota does not have an age discrimination statute. There is no state FMLA

Tennessee Yes Yes No state FMLA. However, some parental FMLA for new parents (maternity & adoption)

Texas Yes Yes There is no state FMLA

Utah Yes Yes 180 days against employers with less than 15 employees. No state FMLA

Vermont Yes Yes 365 days against employers with less than 15 employees. State FMLA cover family and medical, small necessities, and since 2014, there is the Vermont Flexible Working Arrangements Law, which gives employees the right to request a flexible working arrangement up to twice a year.

Virginia Yes No No state FMLA

Washington Yes Yes 180 days against employers with less than 15 employees. State FMLA covers medical, domestic violence, pregnancy, and military leave

West Virginia Yes Yes 365 days against employers with less than 15 employees. No state FMLA

Wisconsin Yes Yes 300 days against employers with less than 15 employees. Basic state FMLA

Wyoming Yes Yes 90 days against employers with less than 15 employees. No state FMLA

District of Columbia Yes Yes For charges against employers of less than 15 employees, limits can vary from 180 days to 365 days, depending on where your case arose. D.C. provides Paid Sick, Family, and Domestic Violence Leave

Puerto Rico Yes Yes Puerto Rico law provides for up to 26 weeks of disability benefits for non-work related disabilities

American Samoa, Northern Mariana Islands, Guam, and Wake Island No No 180 days against employers with less than 15

employees

Appendix 2: EEOC Statute of Limitation and Family and Medical Leave Laws by State

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Appendix 3 List of State Bar Offices

Alabama State Bar (334) 517-2126 415 Dexter Ave Montgomery, AL 36104

Alaska Bar Assoc. (907) 272-7469 840 K St Ste 100 Anchorage, AK 99501

Arkansas Bar Assoc. (501) 375-4606 2224 Cottondale Ln Little Rock, AR 72202

State Bar of California (415) 538-2000 180 Howard St San Francisco, CA 94105

Colorado Bar Assoc. (303) 860-1115 1900 Grant St Ste 900 Denver, CO 80203

Connecticut Bar Assoc. (860) 223-4400 PO Box 350 New Britain, CT 06050

Delaware State Bar Assoc. (302) 658-5279 405 N King St Ste 100 Wilmington, DE 19801

The Florida Bar (850) 561-5600 651 E Jefferson St Tallahassee, FL 32399

State Bar of Georgia (404) 527-8700 104 Marietta St NW Ste 100 Atlanta, GA 30303

Hawaii State Bar Assoc. (808) 537-1868 1100 Alakea St Ste 1000 Honolulu, HI 96813

Idaho State Bar (208) 334-4500 PO Box 895 Boise, ID 83701

Illinois State Bar Assoc. (217) 525-1760 424 S 2nd St Springfield, IL 62701

Indiana State Bar Assoc. (317) 639-5456 1 Indiana Sq Ste 530 Indianapolis, IN 46204

Iowa State Bar Assoc. (515) 243-3179 625 E Court Ave Des Moines, IA 50309

Kansas Bar Assoc. (785) 234-5696 1200 SW Harrison St Topeka, KS 66612

Kentucky Bar Assoc. (502) 564-3795 514 W Main St Frankfort, KY 40601

Louisiana Bar Assoc. (504) 566-1600 601 Saint Charles Ave Ste 200 New Orleans, LA 70130

Maine State Bar Assoc. (207) 622-7523 PO Box 788 Augusta, ME 04332

Maryland State Bar Assoc. (410) 685-7878 520 W Fayette St Ste 100 Baltimore, MD 21201

Massachusetts Bar Assoc. (617) 338-0500 20 West St Boston, MA 02111

State Bar of Michigan (517) 346-6300 306 Townsend St Lansing, MI 48933

Minnesota State Bar Assoc. (612) 333-1183 600 Nicollet Mall Ste 380 Minneapolis, MN 55402

The Mississippi Bar (601) 948-4471 PO Box 2168 Jackson, MS 39225

Missouri Bar Assoc. (573) 635-4128 326 Monroe St Jefferson City, MO 65101

State Bar of Montana (406) 442-7660 7 W 6th Ave Ste 2B PO Box 577 Helena, MT 59624

Nebraska State Bar Assoc. 402) 475-7091 635 S 14th St Lincoln, NE 68508

State Bar of Nevada (702) 382-2200 600 E Charleston Blvd Las Vegas, NV 89104

New Hampshire Bar Assoc. 603) 224-6942 2 Pillsbury St Ste 300 Concord, NH 03301

New Jersey State Bar Assoc. (732) 249-5000 1 Constitution Sq New Brunswick, NJ 08901

State Bar of New Mexico (505) 797-6000 5121 Masthead St NE Albuquerque, NM 87109

New York State Bar Assoc. 518) 463-3200 1 Elk St Albany, NY 12207

North Carolina Bar Assoc. (919) 677-0561 PO Box 3688 Cary, NC 27519

State Bar of North Dakota (701) 255-1404 PO Box 2136 Bismarck, ND 58502

Ohio State Bar Assoc. (614) 487-4464 1700 Lake Shore Dr Columbus, OH 43204

Oklahoma Bar Assoc. (405) 416-7000 PO Box 53036 Oklahoma City, OK 73152

Oregon State Bar (503) 620-0222 PO Box 231935 Tigard, OR 97281

Pennsylvania Bar Assoc. (717) 238-6715 PO Box 186 Harrisburg, PA 17108

Rhode Island Bar Assoc. (401) 421-5740 115 Cedar St Ste 2 Providence, RI 02903

South Carolina Bar (803) 799-6653 950 Taylor St Ste 300 Columbia, SC 29201

State Bar of South Dakota (605) 224-7554 222 E Capitol Ave Ste 3 Pierre, SD 57501

Tennessee Bar Assoc. (615) 383-7421 221 4th Ave N Ste 400 Nashville, TN 37219

State Bar of Texas (512) 427-1500 1414 Colorado St Ste 300 Austin, TX 78701

Utah State Bar (801) 531-9077 645 S 200 E Ste 310 Salt Lake City, UT 84111

Vermont Bar Assoc. (802) 223-2020 PO Box 100 Montpelier, VT 05601

Virginia State Bar (804) 775-0500 707 E Main St Ste 1500 Richmond, VA 23219

Washington State Bar Assoc. (800) 945-9722 1325 4th Ave Ste 600 Seattle, WA 98101

The West Virginia State Bar (304) 553-7220 2000 Deitrick Blvd Charleston, WV 25311

State Bar of Wisconsin (608) 257-3838 5302 Eastpark Blvd Madison, WI 53718

Wyoming State Bar (307) 632-9061 PO Box 109 Cheyenne, WY 82003

This brochure contains only general information and is not meant to be legal advice. Laws vary by state and are constantly changing. As a result, we make no warranty or guarantee of the accuracy or reliability of the information contained herein. You should consult a lawyer before acting on any information contained herein for advice specific to your situation.