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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I was diagnosed with stage III lung cancer on5/27/15 and

Customer Question

I was diagnosed with stage III lung cancer on5/27/15 and went on short term disability from my employment of 10 plus years I received radiation , chemotherapy, and on 10/21/15 had surgery to remove 1/4 of my lung. i'm currently still recuperating and now on long term disability (both short and long term employee paid) but was informed today that my employment at the hospital will be terminated effective 3/1/16. I would receive 1 month insurance and not sure if my disability will continue. I have just yesterday received a CT scan for pain in the surgical region and was told today that I have a pneumonia and fractured rib common from this type of surgery . My oncologist, surgeon,pulmonary and primary care doctors all sent in documentation that I would be out of work as of 11/1/15 for 6months to a year. I would like to know if covered under any type of laws to keep my job or a job at the hospital once i'm cleared and my insurance. I live and work in Massachusetts
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

The Family Medical Leave Act would entitle an eligible employee to up to 12 weeks of protected job leave, which at this point you have exceeded. The only remaining job protection is that afforded through the Americans With Disabilities Act, which requires employers to "reasonably accommodate" disabled employees by allowing them to take job leave. The problem is that unlike the FMLA, the ADA does not specify a particular duration of protected job leave that employers must provide. Employers are only required under the ADA to provide that much time which is "reasonable," meaning what will not cause them to incur undue hardship. Usually this is a few additional weeks of protected leave, but given that you are talking about an absence in excess of 1 year, you have probably exceeded the length of time that you could reasonably argue is a required accommodation under the ADA.

You can certainly still raise the argument via written letter to your employer, and perhaps your employer will continue to hold your job out of fear of being sued. But ultimately if you are let go, the odds of a successful lawsuit are probably not too great. You can, at the very least, file a complaint with the EEOC, which will trigger and investigation and perhaps a mediation of your claim. But to pursue a lawsuit (the only remedy if the EEOC investigation process does not resolve your claim) would typically be impractical under the circumstances you describe.

As for your insurance, if your insurance is with a group health plan and your employer has 20 or more employees, you should be eligible for continued coverage through a federal law known as COBRA. Under COBRA, employers must allow employees to stay on their group plan if terminated from employment. The employee must pay the entirety of their premium, but this is usually still better than trying to get health insurance on the private market, which typically costs more than the group plan premium. See here for more information about COBRA.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.