Disability Law FAQs
Here are answers to some common questions readers ask us about Social Security disability, workers' compensation, and protection from disability discrimination.
Commonly Asked Questions About Disability Law
Below you'll find answers to the most frequently asked questions surrounding disability law.
- How much are disability lawyers paid?
- Who is eligible for Social Security disability benefits?
- How can I apply or submit a claim for Social Security disability benefits (SSDI) or SSI?
- Can I work at all and receive Social Security disability benefits?
- What about my family? Are they entitled to Social Security disability benefits?
- How do I know whether I am covered by workers' compensation?
- If an employee is receiving workers' compensation benefits, but returns to work, does the employee still get to receive workers' compensation benefits?
- Can an employee recover workers' compensation benefits, no matter what he or she did, because it is a "no-fault" system?
- Can an employee recover workers' compensation benefits, even if he or she was not actually at the workplace when injured?
- Who pays workers' compensation benefits?
- What is the ADA?
- Why do we need it?
- Who does the ADA cover?
If you work long enough at a job where you pay Social Security taxes, and you become disabled, you are eligible for Social Security disability insurance (SSDI) benefits.
If you haven't worked long enough for SSDI, you may qualify for Supplemental Security Income (SSI). Your income must be under a certain amount (SSI will start to be phased out at $733 per month and stop altogether at approximately $1,500 per month), you must be disabled (or blind or elderly), and you must have fewer than $2,000 in assets if single, or $3,000 in assets if married (not counting your house, certain household goods, wedding and engagement rings, and several other exceptions).
According to the Social Security Administration (SSA), you are disabled if you have a physical or mental impairment that prevents you from working at any job available nationally. In order to win disability benefits (either SSI or SSDI), you must have a disability severe enough to keep you from working in any regular paying job for at least 12 consecutive months. The SSA will decide, after reviewing your benefits application and your doctor’s reports, if your mental or physical impairments are severe enough to be considered a disability.
Learn more about eligibility for disability benefits through the SSA.
You can call the SSA at 800-772-1213 to set up an appointment to apply for benefits. You will be asked to fill out an application. An employee at your local SSA office can also help you fill out the application. You can also make someone your authorized representative to fill out the form for you. This person can be a relative, a friend, or a disability lawyer. Disability claimants who are represented by lawyers may have an easier time winning their benefits than those who apply on their own.
If you’re applying for SSDI only, you can apply online at www.ssa.gov.
You can work and make a small amount of income. For SSDI, the limit is $1,130 per month in 2016 (or $1,820 if you are blind) -- anything over that amount is considered "substantial gainful activity" (SGA) and if you make that amount of income, the SSA will assume that you are able to work.
However, to encourage disability beneficiaries to go back to work, the SSA will allow you to work for a limited period of time without reducing your benefits so that you can test out whether you can go back to work. For the SSDI program, there is what’s called a trial work period.
For more information, see our article on working while on SSDI disability.
For SSI, there are various work incentives. For one, the SGA limit doesn't apply once you've been approved for benefits. Also, the SSA doesn't count half your earned income toward the SSI income limit. And there is a Plan for Achieving Self-Support (PASS) that allows you to make and save income with a goal toward permanently returning to work.
For more information, see our article on working while on SSI disability.
If you receive benefits from Social Security disability insurance (SSDI), your spouse (or ex-spouse) and children may be able to receive a dependents benefit, which is less than your monthly benefit. Children who are under 18, teenagers who still attend high school and are under 19, and children or young adults who were disabled before age 22 are entitled to Social Security dependents benefits.
In addition, spouses who are 62 years of age and ex-spouses who are 62 years old or older who were married for at least ten years to a disabled worker can get benefits. Finally, a spouse or ex-spouse who cares for children of the disabled worker can get benefits until the children turn 16, or indefinitely if the child is disabled and became disabled before the age of 22.
For more information, see our section on dependents benefits.
Generally, there are two main factors that determine whether you are covered by workers’ compensation: whether you are an employee (not an independent contractor or volunteer) and whether your injury occurred as a result of your employment. In addition, in many states, agricultural and domestic workers aren’t covered by workers’ compensation.
The answer to this question is "maybe." If an employee returns to work part time, or returns to work full time and makes less money than he or she did before getting injured, in most states he or she can continue to receive temporary disability payments through workers’ comp. But if the injured worker goes back to work full time and makes as much or more money than he or she did before, temporary disability benefits will stop. In most states, permanent disability benefits are not affected by returning to work, but in some states, permanent disability payments may be stopped if the worker recovers within two to five years of the date that the permanent disability award was made.
Although worker’s comp is generally a no-fault system (you don’t have to prove your employer was to blame), if you were intoxicated at work, you intentionally injured yourself, you initiated a fight, or you were engaged in horseplay that the employer did not condone, you might not be covered by workers' compensation. If you are unsure or if your workers' comp claim is denied, contact a workers' comp lawyer.
The answer to this question will depend on the laws in your particular state, and the facts of the specific case. Generally speaking, if the injury "arises out of" and occurs "within the scope of employment," it is covered. For example, if an employee is a traveling salesperson and is injured in the hotel where he or she is staying for business purposes, the employee will be covered.
Similarly, if an employee is running an errand that takes him or her outside of the workplace at the request of the employer, and an injury occurs in the course of running that errand, the employee will be covered. If the employee is on a business errand, but has stopped or deviated from that errand for personal reasons, then the insurance company may deny benefits and a workers’ compensation judge will decide the case.
In most states, employers are required to purchase insurance for their employees from a workers' compensation insurance carrier. In some states, larger employers who are solvent and willing to pay a large deposit are allowed to “self-insure,” or act as their own insurance companies. When a worker is injured, the worker files a claim with the workers' compensation carrier, who pays medical and temporary or permanent disability benefits according to a state-approved formula.
11) What is the ADA?
The ADA is a federal civil rights law that protects people with disabilities from discrimination in employment, state and local government services, public accommodations, transportation, and telecommunications.
12) Why do we need the ADA?
Historically, people with disabilities have faced discrimination on the job, in accessing public buildings and services, and in using public accommodations, such as hotels, restaurants, and shops. People with disabilities are much less likely to be employed that those who don't have a disability; those who are employed earn more than $5,000 less per year, on average, that employees without disabilities.
13) Who does the ADA cover?
The ADA covers people with disabilities, people with a history of disability, and people who are perceived -- even incorrectly -- as having a disability. A disability is a physical or mental impairment that substantially limits a major life activity (such as breathing, walking, seeing, hearing, or caring for oneself) or a major bodily function, such as the proper working of the immune system, reproductive organs, or normal cell growth.
In the employment context, a person with disability is protected from discrimination only if qualified for the job and able to perform its essential functions, with or without a reasonable accommodation. In other words, employers are not required to hire unqualified people (those who lack the proper credentials, experience, or licenses, for example) or those who can't perform the fundamental duties of the job, simply because they have a disability. However, if an applicant is qualified and can do the job with or without an accommodation (for example, a lowered desktop for an employee using a wheelchair or TDD telephone equipment for an employee with hearing loss), then the employer may not refuse to consider that person for the job because of a disability.