Fighting Cancer and Discrimination Too
I’m seeing a trend. We seem to be getting more and more calls from employees who have lost their jobs while in the midst of treating for cancer, and from employers who are trying to figure out what to do about an employee with a serious illness.
Needless to say, employees whose employment is terminated during treatment have a particularly difficult time, especially if they are dependent on employer-provided health insurance. The question is difficult too for employers who want to stay within the bounds of the law, but cannot afford to keep on an employee whose performance is lacking.
The trend we’ve seen appears to be worldwide. The New York Times today discussed an analysis in the Journal of the American Medical Association, concluding that cancer survivors in the U.S. and Europe are 37 % more likely to be unemployed than their healthy peers.
http://www.nytimes.com/2009/02/18/health/18cancer.html
What are the rights of an employee with cancer? Under the Americans with Disabilities Amendments Act, it is clear that cancer is a covered “disability.” An employee cannot be fired simply because he or she has cancer. Likewise, an employee cannot be fired simply because he or she took leave under the FMLA.
An employee is NOT protected if he or she is fired for some other reason, such as poor performance. The difficulty for both employees and employers in this situation is proof of the actual motive.
An employee who is battling fatigue or other side effects of treatment may be entitled to a reasonable accommodation under the Americans with Disabilities Act (“ADA”) (for example, being permitted to work from home on occasion). There are hundreds of cases discussing what accommodations are “reasonable,” and the answer will depend in large part on cost or other burdens to the employer. The employee’s rights to an accommodation under the ADA are triggered when the employee lets the employer know that he or she requires an accommodation, and the employer has an obligation to work with the employee to craft a reasonable accommodation.
Both employers and employees may benefit from allowing an employee to take intermittent leave under the Family and Medical Leave Act (“FMLA”) during the time of treatments.
If the treatments or illness are so incapacitating that the employee is unable to adequately do the job, even with a reasonable accommodation, the parties should first allow the employee to take FMLA leave, assuming the employer is covered by the FMLA. When the 12 weeks of FMLA leave are over, the employer no longer has the obligation to continue the employee’s employment.