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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 31985
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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Customer Question

I live in CA and I am off on disability for cancer. How long does my Employer Home Depot have to hold my job?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Tina replied 1 year ago.
Hello and welcome,

I am sorry to hear of your very difficult situation.

Does your condition substantially limit one or more major life activities, such as walking, breathing, or some other bodily function?
Customer: replied 1 year ago.


No when I am cleared to work after this last Chemo I should have not restrictions.

Customer: replied 1 year ago.


So what is my answer?

Expert:  Tina replied 1 year ago.
I see. Thank you for that information Shirley. I need to know though, while you are on leave, does your condition substantially limit any major life activities? That is the definition of a disability under the ADA, and would likely determine the outcome of how long the employer must retain you as an employee.
Customer: replied 1 year ago.


I have three operations, radition and chemo to srink the tumor and now mop up Chemo to make sure it is all gone. I could not work when recoverning from the operations and right not the Chemo makes me sick. After it is all done the doctors say I will be able to return to work. I am hearing from other employees a Home Deopt that management is saying I am not returning. Do they have to hold my job?

Customer: replied 1 year ago.
,


I have three operations, radition and chemo to srink the tumor and now mop up Chemo to make sure it is all gone. I could not work when recoverning from the operations and right not the Chemo makes me sick. After it is all done the doctors say I will be able to return to work. I am hearing from other employees a Home Deopt that management is saying I am not returning. Do they have to hold my job?

Expert:  Tina replied 1 year ago.

Hello again Shirley and thank you for the additional information.

Under federal and state law, the employer is typically required to retain you as an employee for up to 12 week only. However, the ADA does provide additional protection if you have a disability and the additional leave time can be characterized as a reasonable accommodation that is not an undue hardship to the employer.

2. When is cancer a disability under the ADA?

Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person's major life activities.

Example: Following a lumpectomy and radiation for aggressive breast cancer, a computer sales representative experienced extreme nausea and constant fatigue for six months. She continued to work during her treatment, although she frequently had to come in later in the morning, work later in the evening to make up the time, and take breaks when she experienced nausea and vomiting. She was too exhausted when she came home to cook, shop, or do household chores and had to rely almost exclusively on her husband and children to do these tasks. This individual's cancer is a disability because it substantially limits her ability to care for herself.

Example: A telephone repairman with an advanced form of testicular cancer has chemotherapy and surgery that render him sterile. He is an individual with a disability under the ADA because he is substantially limited in the major life activity of reproduction.

Even when the cancer itself does not substantially limit any major life activity (such as when it is diagnosed and treated early), it can lead to the occurrence of other impairments that may be disabilities. For example, sometimes depression may develop as a result of the cancer, the treatment for it, or both. Where the condition lasts long enough (i.e., for more than several months) and substantially limits a major life activity, such as interacting with others, sleeping, or eating, it is a disability within the meaning of the ADA.

Cancer also may be a disability because it was substantially limiting some time in the past.

Example: A company president was hospitalized for 30 days immediately following his diagnosis of blood cancer. Because his treatment, which included chemotherapy and a bone marrow transplant, weakened his immune system he was unable to care for himself for six months and had to avoid interactions with almost everyone except his doctors, nurses, and immediate family members. This individual has a record of a disability.

Finally, cancer is a disability when it does not significantly affect a person's major life activities, but the employer treats the individual as if it does.

Example: An individual with a facial scar from surgery to treat skin cancer applies to be an airline customer service representative. The interviewer refuses to consider him for the position because she fears that his scar will make customers uncomfortable. In basing her decision not to hire on the presumed negative reactions of customers, the interviewer is regarding the applicant as substantially limited in working in any job that involves interacting with the public.

Example: After making a job offer, an employer learns that an applicant's genetic profile reveals an increased susceptibility to colon cancer. Although the applicant does not currently have and may never in fact develop colon cancer, the employer withdraws the job offer solely based on concerns about productivity, insurance costs, and attendance. The employer is treating the applicant as if he has a disability.

Under the ADA, the determination of whether an individual currently has, has a record of, or is regarded as having a disability is made on a case-by-case basis.

 

Here is a link that provides this and additional information about cancer as a disability under the ADA:

 

http://www.eeoc.gov/facts/cancer.html

 

It sounds as though your condition would qualify as a disability under the ADA, so if you request the additional leave time as a reasonable accommodation under that statute, the employer MUST provide the additional leave UNLESS it is an undue hardship to them. To constitute an undue hardship, it must typically be too costly for them to permit the leave time to continue. Because your employer is so large, it is llikely the additional time is NOT an undue hardship unless you are a key worker.

 

So it would be best to request the additional leave as a reasonable accommodation under the ADA normally and retain a local employment law attorney to protect your rights under the ADA if the employer denies your request for additional leave as an accommodation.

 

 

 

It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

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