February 4, 2020 is World Cancer Day. Today we are talking about some of the employment law implications of a cancer diagnosis, as well as your rights if you are the victim of a missed cancer diagnosis.
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. Most forms of cancer will likely qualify as serious health conditions under the FMLA because they 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.
Cancer that requires surgery or chemotherapy will likely fall under the definition of a disability under the federal Americans with Disabilities Act. 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.
The law is relatively similar under the New York State Human Rights Law with the exception that requests for reasonable accommodations are not considered to be “protected activity” for retaliation purposes – only complaints of discrimination. The NYHRL is, however, more favorable that the ADA on the issue of the definition of a disability, which is more broad, and the case law seems to be more open to finding that a request for an accommodation is “reasonable.”
New York State Paid Family Leave
This relatively new law applies to caring for family members – not for your own medical condition. New York now has paid family leave which 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.
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.
Medical Malpractice Issues
Imagine receiving a devastating cancer diagnosis, only to find out that it could have and should have been caught earlier. Perhaps a mass was visible on a previous MRI or chest x-ray, but no one told you. Or your doctor failed to follow up on or consider relevant symptoms. In these types of situations, it's possible that you have a claim for medical malpractice, particularly if your prognosis would have been different if the cancer had been caught earlier.
Prior to the passage of Lavern's Law, insult was often added to injury when a patient did not learn of the missed cancer diagnosis until the statute of limitations had already expired. Now, in New York, we have a discovery rule applicable in missed cancer diagnosis cases, meaning that the statute of limitations does not begin to run until the date of the discovery of the missed diagnosis. You can learn more about that here.
Once patient is concerned about medical malpractice, an attorney should be consulted as soon as possible because physicians enjoy a shorter statute of limitations than other professionals: 2 ½ years as opposed to, say, three years in a legal malpractice case. Because these cases are very costly and difficult to litigate, you need as much time as possible to adequately evaluate them, collect all relevant medical records, and have them reviewed by an expert.
You can read more about delayed diagnosis cases here.