How Can I Keep My Job?
There are three federal laws that may help you protect your job. Under the Family Medical Leave Act (FMLA), you can get time off for treatment, recuperation and follow-up care if you meet the eligibility requirements. If your cancer qualifies as disability, the Americans with Disabilities Act (ADA) or the Rehabilitation Act will require your employer to make accommodations for your special needs if these accommodations are reasonable.
Don’t forget that your employer may provide greater leave benefits than the law requires; your employer may also agree to reduced work hour or a change in duties for physically taxing employment. Check your employee handbook and benefits plan. For more details on your benefit plan, talk to your employer’s human resources department.
The Family Medical Leave Act
The FMLA allows you to take up to 12 weeks of unpaid leave from your job each year, either all at once or in segments as short as minutes. This is useful if you or your family member has daily or weekly cancer treatments. You can even use up your leave little by little to reduce your work schedule over a period of time. The law says that your employer can not require you to use more leave than necessary. In addition, your employer can not ask you to schedule your treatments during non-working hours if such absences are medically necessary (unless your absence causes a major interruption in business). FMLA leave is unpaid, unless your employer’s policy provides for the use of paid leave; even though you are on unpaid leave your health plan coverage will continue as if you were on paid status. At the end of the leave, you can come back to the same (or equivalent) job without losing any of your benefits.
To qualify for leave, you must:
► Work for a government agency or an employer who has 50 or more employees located either in your workplace or within 75 miles of your workplace;
► Have worked for your employer for 12 months (which could have been at any time in the past) and at least 1250 hours in the past 12 months; and
► Provide medical certification that you or your family member has a serious health condition.
If you are a teacher or a “key employee” (certain highly compensated employees) special rules apply; these need to be checked. Information on the FMLA leave can be found through the Department Of Labor.
To receive leave, you should
► Tell your employer you are requesting time off under FMLA;
► Give at least 30 days notice (if possible), or tell your employer as soon as possible under the circumstances that you need the leave;
► Always try to keep your employer informed and with time to prepare for your absence.
FMLA Leave For Your Spouse or Child
If you are unable to care for yourself, or need transportation for medical care (because you can not do it yourself), your spouse or your children may take FMLA leave to assist and care for you. They have to follow the same rules as apply to you.
Challenging a Denial of Leave:
► File a complaint with the Wage and Hour Division of the U.S. Department of Labor and/or;
► File a lawsuit within two years, or before the statute of limitations runs out.
The Americans with Disabilities Act and the Rehabilitation Act
The ADA and the Rehabilitation Act protect employees with a physical or mental condition that substantially limits one or more of life’s major activities (such as eating, sleeping, walking, breathing) Cancer has frequently been found not to be a disability because it was either not substantially limiting or was successfully treated and therefore of short duration. Under these Acts, your employer cannot adversely affect the terms of your employment (fire you, pay you less wages, demote you) because of your cancer.
The employer is not required to provide personal items (wheel chairs, beds) or provide accommodations that cause an undue burden or a safety risk. For example, if you are on oxygen, you may be a safety risk at your worksite, or providing you with a special work schedule could be an undue burden. You must be able to perform the essential functions of the job with reasonable accommodations. Often absenteeism, particularly when it is unscheduled or unpredictable, is an accommodation that an employer does not have to make.
You qualify for protection if:
► You work for a company of 15 or more employees or a government agency;
► Your cancer qualifies as a disability; and
► You are able to perform your essential job functions job with or without unreasonable accommodations.
You are protected from an employer:
► Asking about your disability before hiring;
► Refusing to hire you because of a disability;
► Treating you differently because you are disabled, have a history of disability, or are viewed as being disabled (just because you have cancer does not mean that you are disabled)
► Firing you because of a disability.
You are entitled to reasonable accommodations
You must ask your employer for accommodations; unless you tell your employer that you have a disability and need accommodations, the employer is not required to provide any accommodations. So long as these accommodations don’t cause your employer undue hardship or expense, your employer must help you do your job. Bear in mind, however, that your employer does not have to do exactly what you ask, or even what your doctor recommends as long as the accommodations offered are reasonable and effective.
This accommodation requirement is an important right, because it means you may be able to receive:
► Special rest breaks;
► Time off for treatment;
► Additional time off after your FMLA leave has run out;
► Reassignment to a more flexible position; or
► Other work adjustments.
What if you can’t work?
If you need more information on your options and rights at your job after a cancer diagnosis, please click here to read more.
You can challenge loss of your rights
If you believe that you have been discriminated against, or if your employer will not make reasonable accommodations for your cancer you should immediatly let the employer know that you believe that you are entitled to such rights. If you do not get satisfactory results, you may
► File a charge with the Equal Employment Opportunity Commission (EEOC), www.eeoc.gov, at 1-800-559-4000 as soon as possible. In Virginia, you may file a charge no later than 300 days (in other states the time period may be as little as 180 days).
► If you are a federal employee, contacting an EEO counselor in your agency within 45 days.