Future Harm as a Current Disability: Insurance Coverage for a Risk of Substance Abuse Relapse Under ERISA

Kind, Jonah | January 1, 2014

Disability insurance policies generally provide benefits to workers who are unable to work because they become addicted to drugs or alcohol. But what happens when the addict stops the substance abuse? Addiction is considered to be a lifelong disease with no real cure. Many addicts fear that a return to the workplace will trigger a relapse into substance abuse, for example when an anesthesiologist returns to work after becoming addicted to an anesthetic drug. This Note examines whether the risk of relapsing into substance abuse can ever qualify as a disability under conventional own-occupation group disability policies, which are subject to ERISA. Although courts have readily held that risks of physical harm, such as a heart attack, can constitute a disability because they render a policyholder unable to work, courts have thus far split when it comes to a risk of relapse into substance abuse. This Note argues that a risk of relapse into substance abuse can sometimes constitute a disability because there is no meaningful legal distinction between that and a risk of physical injury. To determine when these risks of future harm constitute a current disability, courts and ERISA plan administrators should assess whether the risk faced by the policyholder would prevent a reasonable person without disability insurance—and thus no reason to falsely claim an inability to work—from returning to employment.