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October is Breast Cancer Awareness Month

Posted by Giovanna A. D'Orazio | Oct 02, 2018 | 0 Comments

A breast cancer diagnosis can be both personally and professionally devastating.  Today we are talking about some of the employment law implications of a breast cancer diagnosis.  This article is relevant to any type of cancer severe enough to fall under the “serious health condition” and disability definitions of the FMLA and ADA, respectively. 

Family and Medical Leave Act

The FMLA is the federal law that allows eligible employees with a qualifying serious health condition 12 weeks of job protected (unpaid) leave.  Eligible means you worked 1250 hours in the year preceding your request for leave and your employer is a private entity with 50 employees or more within a 75-mile radius or is a public entity.  Breast cancer will most likely qualify as a serious health condition under the FMLA because it would involve either an inpatient hospital stay or a continuing course of treatment with a physician.

Job protection means that – with some exceptions for “key employees” – your employer has to hold your job for 12 weeks and allow you to return.  Once your employer allows you to return after 12 weeks, it has met its obligations under the FMLA.  If you cannot return, you would have to look elsewhere (like the disability discrimination laws) for recourse.  If you do return, your employer is not allowed to retaliate against you for having taken time off.

FMLA leave can be taken in blocks or intermittently (such as for doctor's appointments or chemotherapy).  If your employer doesn't allow you to take leave to which you are entitled or discourages you from taking leave, that can constitute “interference” with your FMLA rights. 

The FMLA also allows employees time off to care for close relatives, like a spouse or parent with cancer. 

Disability Discrimination

Breast cancer that requires surgery or chemotherapy will likely fall under the definition of a disability under the federal Americans with Disabilities Act.  (It is possible that a lump that requires same day removal and no follow up treatment would not).  This means you are protected from discrimination, retaliation for making complaints of discrimination, are entitled to reasonable accommodations of your disability, and are protected from retaliation for requesting an accommodation.  Reasonable accommodations can include a medical leave of finite duration, light duty if you are recovering from surgery and time off for doctor's appointments. 

Sex (or other) Discrimination

Any time an employer treats one sex more favorably than the other, it can constitute sex discrimination.  So, if you are a woman with breast cancer and your employer has treated you less favorably than men with serious health conditions or disabilities, you may have a claim.

This concept would apply to pretty much any protected status.  (So, if your employer treats white employees with disabilities more favorably than black employees, there may be race discrimination at play).

New York State Law

The New York State Human Rights Law protects employees from disability discrimination (as well as other types of discrimination like sex, race, sexual orientation, national origin).  As a general matter, New York law is more favorable than federal law when it comes to disabilities.  The definition of a disability is broader and the case law seems to be more open to finding that a request for an accommodation is “reasonable.” 

Like the FMLA, New York's (relatively new) Paid Family Leave Law applies to employees who need time off to care for a sick relative (it does not, however, apply to the employee's own illness).  NY's law offers job protection for 8 weeks (2018), 10 weeks (2019 and 2020) and 12 weeks (2021).  There is not currently a lawsuit remedy for violations of the Paid Family Leave Law but there are procedures to follow if your rights are being violated.  You can learn more about New York's law here.

Other Recourse

Unfortunately, if the severity of an employee's illness does not allow he or she to work for a prolonged period of time, there may not be recourse in the employment discrimination laws. Employees who are members of unions may have job protection for a prolonged period of absence in a collective bargaining agreement.  In New York, Civil Service Law employees with out of work disabilities have procedures through which they can apply for reinstatement once they are able to return to work.   At a certain point, an employee may have to consider applying for long term disability or Social Security Disability benefits. 

What to do if your rights have been violated?

We always suggest contacting an attorney if you are having difficulty with your employer in utilizing FMLA leave or navigating a disability.  Ideally you would do this prior to resigning since the law is less favorable to employees who have resigned rather than who have been fired.  You should certainly contact an attorney once you are fired or suffered some other adverse employment action because the clock will start ticking on any potential claims once that happens.  The clock also starts ticking once a request for an accommodation or FMLA leave has been denied.

The EEOC and New York State Division of Human Rights take complaints of disability discrimination.  Both the state and federal Departments of Labor take complaints of FMLA violations.  The FMLA does not require filing a complaint with an agency prior to filing a lawsuit.  However, because FMLA cases are often disability cases too, you want to be sure to preserve your rights under the ADA by filing a disability discrimination complaint with the EEOC. 

If you believe your rights are being violated, give us a call.  We're happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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