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Anne_C, Lawyer
Category: Employment Law
Satisfied Customers: 2302
Experience:  15 Years Litigation Experience
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Asking for a part time schedule during chemotherapy

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Asking for a part time schedule during chemotherapy treatements, now being fired (tomorrow). Is this right? Five years'' seniority, sick wife, need my insurance. I work at a hospital as a janitor, have skin cancer, had surgery, taking chemo, need shorter hours to get by.

Dear Perrinton, Michigan:

  • How many employees does your employer have?
  • Have you requested leave under the Family Medical Leave Act?
  • If you have requested and already taken FMLA leave, how much leave have you taken?
  • Have you been told why you are being fired? Is it something other than needing part time hours?
  • Are you in a union?
  • Do you have an employment contract? If so, does it address terminations?
  • Do you have an employment manual? If so, does it address terminations?
  • Are you working in the State of Michigan?
  • Do you know your prognosis on recovering from the skin cancer?
Customer: replied 9 years ago.
Reply to Anne's Post: Hospital has over 100 employees. Not had leave under Family Medical Leave Act.Not told why yet, no union. No contract. No manual. Yes, working in Michigan. Prognosis so-so, still on chemo. No "end date," though!Plan on being around a while yet!

Dear Perrinton, Michigan:

Since your employer has that many people, your employer has to comply with the Family Medical Leave Act (FMLA), which is here: Your employer also cannot discriminate based on your disability -- or what it perceives as your disability -- under the Americans with Disabilities Act (ADA), which is here:

If your employer does terminate you anyway, you are going to be entitled to insurance benefits under COBRA, which is here:

Family Medical Leave Act. Under the FMLA, you are entitled to take up to twelve weeks of unpaid leave a year to take care of your own illness, or that of a close family member. You have to have worked more than 1,250 hours the previous year to be eligible. Your employer may ask you to provide a doctor's certification.

You can take leave intermittently (for example, a day here or a day there) to accommodate your chemotherapy schedule. Here is a description of intermittent leave under the FMLA:

The Equal Employment Opportunity Commission (EEOC) can take and investigate complaints of violations of the FMLA. Here is their website:

Americans with Disabilities Act (ADA). Under the ADA, "An individual with a disability is a person who

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment.

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

  • Job restructuring, modifying work schedules, reassignment to a vacant position . . .

The reason I asked about your prognosis is that in the case of skin cancer, if there is a full recovery, then the recovered patient wouldn't be considered permanently disabled (unless excising the cancer and lymph nodes caused other damage). Someone who is going to have to continue chemotherapy for the foreseeable future would be considered disabled. No matter what the case, as the ADA shows, if the employer just thinks the employee is disabled, the ADA applies.

The Equal Employment Opportunity Commission (EEOC) can take and investigate complaints of violations of the ADA. Here is their website:

Continued Employment in Light of FMLA and ADA

The FMLA and ADA give an employee the same rights -- not greater rights -- than a non-disabled employee has to employment. For example, that means that an employee who would normally be laid off, perhaps because the company is downsizing and all employees who had been with the company less than a year were being let go, could be laid off even if they were on FMLA leave or were protected by the ADA.

However, if the employee who is going to be laid off is going to be terminated because of excessive absenteeism when the employee should have been given FMLA leave (but wasn't), that would violate the FMLA. If the employee should have been given a reduced work schedule -- and it would not harm the interests of an employer (say, for example, someone else could work the other half of a shift), then the employer who fails to reasonably accommodate would be violating the ADA.

If You Are Terminated Anyway.

If you are terminated anyway, your employer is required to allow you to take insurance benefits with you under COBRA. You will have 18 months of coverage after your termination -- but you will have to pay insurance premiums, which can be pretty high.

I'm sorry you are in this situation. I hope the information I have provided gives you confidence to talk to your employer tomorrow. Good luck.

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