Protecting Employee Benefits for Parents of Ill Children
and
Children with Disabilities
by
Claire Kennedy-Wilkins, Esq.
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What Is the Employee Retirement Income Security Act (ERISA)?
The
Employee Retirement Income Security Act, or ERISA, is a federal
law governing certain employee benefit plans. For example, if you
receive health insurance through a plan offered by your employer or
union, this is likely to be an ERISA-governed plan. However, ERISA
may not apply in certain situations, such as if you work for a
government entity or a church.
What
Protection Does ERISA Offer to Parents of Children with
Disabilities?
ERISA contains an “anti-discrimination” provision. This provision
makes it unlawful for any person to be fired or otherwise
discriminated against for exercising his or her rights under an
ERISA-governed
plan. It also makes it unlawful to take any action with respect to
an individual, such as firing him or her, in order to prevent him or
her from becoming entitled to benefits under an ERISA-governed plan.
This means that your employer cannot legally fire you because of the
high cost of providing health insurance to your child who is ill or
who has a disability. Likewise, if your employer’s health insurance
plan has a waiting period that you must satisfy before you and your
dependents become entitled to benefits, your employer cannot fire
you during the waiting period in order to avoid the cost of
providing benefits to your disabled child once your child becomes
eligible for coverage.
What Is Required In Order to Show that My Employer Violated My
Rights Under ERISA?
Generally, if a parent believes they were fired or otherwise treated
adversely because of the cost of providing benefits to their child
with a disability, the parent will be required to demonstrate that
(1) his or her employer engaged in prohibited conduct, such as
firing him or her,
(2) for the purpose of interfering with
(3) his
or her rights under the plan.
If the parent can make this initial
showing then the parent’s employer will be given the opportunity to
present evidence that it had a legitimate, nondiscriminatory reason
for its actions. For example, the employer may say that the firing
was motivated by poor job performance or the need to downsize, not a
desire to reduce benefit costs. If the employer can give a lawful
reason for its actions, the parent then has the burden of proving
that the reason the employer gave was not the real reason for its
actions. For example, the parent could try to prove that his or her
job performance was satisfactory and that the real reason for the
termination was that the employer learned that it would be costly to
provide benefits to the employee’s child.
Just showing that you and your child lost your entitlement to
benefits when you were fired is not enough to show that your
employer violated
ERISA.
While you do not need to show that your employer’s sole reason for
firing you was to interfere with your right to benefits, you must
show that this intent was a factor in your employer’s decision, or
that the other reason it gave for firing you is untrue.
What Should I Do If I Think My Employer Fired Me Because of the
High Cost of Providing Benefits to My Child?
If you think that your rights under
ERISA
have been violated due to your child’s disability you should talk to
an attorney. (See below for information on how to find an attorney
in your area.) In some locations, you may be required to file an
administrative claim before filing a claim in court, and in other
locations, you may be able to proceed directly to court. In either
case, your right to pursue a claim can be lost if you do not act
promptly.
If My Employer Discriminated Against Me Due to the High Cost of
Providing Benefits to My Disabled Child, What Relief Am I Entitled
To Under ERISA?
The most common form of relief is reinstatement in your job and
benefit plan. Some courts have also awarded back pay, which refers
to the wages you would have earned in the period between when you
were fired and when you were reinstated. However, the law does not
allow courts to award “monetary damages” to remedy discrimination
claims under
ERISA
and courts have increasingly found that awarding back pay
constitutes an impermissible award of monetary damages.
Punitive damages are not available under ERISA; however, plaintiffs
in successful ERISA lawsuits may be entitled to have their attorneys
fees paid by the defendant.
Other Legal Protections
Other laws, such as the
Americans With
Disabilities Act (ADA), may provide parents of disabled children
with additional legal protections, including in some of the
situations discussed above. In addition, participants in
ERISA-governed employee benefit plans have many other rights under
ERISA that are not discussed here because they do not raise special
issues regarding parents of children with disabilities. If you
believe that your legal rights may have been violated, you should
consult with an attorney.
Finding a Lawyer In Your Area
You can contact the National
Employment Lawyers Association (NELA) at (415) 227-4655 to
obtain a listing of attorneys representing plaintiffs in ERISA cases
in your state. You can also obtain this information by visiting
NELA’s website at http://www.nela.org.
About the Author
Claire Kennedy-Wilkins is Senior Associate Attorney with
Lewis, Feinberg, Lee, Renaker
& Jackson, P.C., in Oakland, California. She represents
plaintiffs in individual and class-action ERISA cases and in wage
and hour disputes.
Contact Information
Claire Kennedy-Wilkins, Esq.
Lewis, Feinberg, Lee, Renaker & Jackson, P.C.
1330 Broadway, Ste. 1800
Oakland, CA 94612
(510) 839-6824
http://www.lewisfeinberg.com
