John, a client of mine with Stage 4 colon cancer, was fired last week. He had used up his FMLA leave to get chemotherapy and was out on disability leave – he was just too tired to work full time.
“My position at work was terminated today and I will need guidance about what to do going forward, as I have no idea,” he shared with me.
“I didn’t see this coming,” he said.
John is one of those people who never complains; when I suggested early on that he apply for accommodations–he just didn’t think he needed them. Work had been really understanding, he said.
Shocked that this had happened and wondering if there was any legal recourse here, I reached out to disability expert and Massachusetts attorney, Denise Chicoine, to ask:
1/ What could John have done differently to protect his job?
2/ What should he do now?
Let’s tackle the first question.
1/ Job protection under ADA. If this patient had requested accommodations for his disability, his job may have been protected. According to Denise, “In broad terms, under the ADA and FMLA, a qualified individual cannot be terminated if that person has requested an accommodation, such as time off for treatment or a change in schedule due to a disability.”
Denise made clear that job protection is not guaranteed: “I would not say that requesting an accommodation on its own instantly creates job protection. It is the first step to establishing that the person is a qualified individual under ADA or FMLA. It certainly creates an issue for a trier of fact if someone is fired right after requesting accommodations – this could result in a claim of retaliation if nothing else.”
The key federal laws that protect patients in this circumstance are the Americans with Disabilities Act and the Family Medical Leave Act. Most states have counterparts to these laws, which sometimes provide even greater protection.
Denise continued, “The point you are asking about is at the heart of the legal protections for individuals with a disability: a covered employer must engage in the interactive process with any “qualified individual,” someone who is able to perform essential job functions with accommodations.”
BUT–and this is SO important–the employee has to ask for accommodations! They aren’t a given. Denise put it in legal speak: “The employee must initiate the process by identifying the medical issue and requesting an accommodation.”
Providing a return to work date is key
“A big tripwire,” she said, “for people with serious conditions is not being able to provide a return to work date. An employee who is out indefinitely is not a qualified individual under the statute. An employee can request to extend a medical leave, but it cannot be entirely open-ended.”
Is working from home an accommodation that can be requested?
That’s a definite maybe.
It is one of the biggest questions that arises today, Denise shared with me: Is working remotely permanently a reasonable accommodation?
Like everything else with disability law, she said, “it is entirely fact-dependent. The answer would depend on the nature of the individual’s work and the type of workplace. An employer is not required to make changes to a position if it would cause an “undue burden,” again a very individualized inquiry.”
Each case is different, she said, because a patient’s rights are governed by the laws of the state they reside in, most likely, unless he/she was hired somewhere else.
New MA law (PFML): 26 weeks of pay to individual OR to care for family
Important to note–for Massachusetts residents–another legal protection that has been added in this state is paid family leave (PFML). It provides up to 26 weeks of pay to any individual with a serious health condition or who needs to care for an immediate family member. So this overlaps with, but extends, the 12-week leave under FMLA. Also PFMLA is available in MA to any employee who receives a W2, regardless of company size, unlike FMLA, which is dependent on the size of the company.
Now to answer to the second question:
2/ What should John, recently fired and with a serious illness, do now?
The first step is to find out if he has a contract, as most employees do not, Denise said. “Usually there is just an offer letter with compensation and benefits. There may be an employment agreement if he was subject to confidentiality and non solicitation provisions. But offer letters and most employment agreements state that the employment is at will.”
The next step is to talk to the social worker at your doctor’s office, if there is one. Many oncology offices will have social workers on staff. John’s oncologist immediately extended his sympathies and told him not to worry–the social worker would be calling him. John was not in this alone, the oncologist said. “A social worker or other member of the health care team will help you find available financial resources,” he said.
Finding Emotional Support
John did just the right thing–he let his support network and his doctor know right away and reached out to them for help.
If you don’t have a support network–reach out to a social worker at the hospital where you are receiving treatment.
“It’s scary to lose your job,” said Rebecca Nellis, Executive Director of Cancer and Careers, a nonprofit organization that helps people with cancer navigate the workplace. And, she added, “It’s scary to spend every day wondering if you’re going to lose your job.”
There are also online support groups:
Triage Cancer,
CancerCare and Cancer Support Community
all offer online support groups and many other resources. You can also see whether your own community might have a cancer support group. Your clinician or hospital may have a list as well.
Paying for Ongoing and Upcoming Cancer Treatment
Topping the list of “most stressful parts of losing a job” is how to pay for your medical care. The websites below offer detailed descriptions of what solutions to this conundrum might look like. Typically, there are four options you might want to look into for health insurance coverage if you have lost your job–and you will want to consider each carefully, and possibly consult a professional (like a health advocate who specializes in this) as they have VERY different price tags:
–1/ The Consolidated Omnibus Budget Reconciliation Act (COBRA) (federal or state)
–2/ Your spouse’s or a parent’s health insurance plan
–3/ The Health Insurance Marketplace
–4/ Medicare or Medicaid.
You will also want to look into applying for disability benefits–also a stressful process, and also one that some advocates help with, as well as lawyers.
In sum
Take a deep breath. If you haven’t lost your job but are worried about that–please look into whether or not you are eligible under the ADA to ask for accommodations.
I hope that you or a loved one will benefit from this knowledge, and from the resources below.
Resources
https://www.lundberghealthadvocates.com/the-best-kept-workplace-secret-accommodations-when-you-have-a-serious-illness/
https://www.cancerandcareers.org/en/at-work/legal-and-financial/top-three-legal-questions
https://triagecancer.org/
How do I take time off work and not lose my job?
https://www.dol.gov/agencies/whd/fmla/faq
https://askjan.org/articles/ADA-Leave-Beyond-FMLA.cfm
https://ascopost.com/issues/november-25-2020/job-loss-during-cancer-how-to-cope-and-continue-treatment/
https://www.urmc.rochester.edu/encyclopedia/content.aspx?contenttypeid=34&contentid=19461-1
https://www.lls.org/managing-your-cancer/employment-rights-cancer-survivors-and-caregivers
https://www.cancercare.org/publications/262-the_value_of_oncology_social_workers
**Disclaimer: All names and identifying details have been changed to protect client confidentiality. The suggestions given here are not intended as a substitute for the medical advice of your physician or legal advice of your attorney.
Photo credit: photo by Nik Macmillan, from Unsplash.com, photos free to use and share.
