Tuesday, October 20, 2015

Healthy Habits: Increasing Awareness of Your Protections Following a Breast Cancer Diagnosis

R. Scott Oswald, Managing Principal, and Adam A. Carter, Principal, The Employment Law Group, P.C.
                Employees returning to work following a breast cancer diagnosis have it very tough. After months of dealing with an unfavorable and very scary diagnosis, they often return to work only to find that their employers simply prefer to replace an employee who needs to take leave. To the employee's surprise, she now finds herself in a second fight after dealing- one with her employer over the nature of her return.
The Family and Medical Leave Act ("FMLA") provides a bevy of protections to employees who are - or have family members who are - suffering from an illness. Perhaps most importantly, the FMLA provides that, over a twelve month period, eligible employees are entitled to take twelve workweeks of leave and return to their same position and under the same conditions. 
                We like to think that most employers will warmly embrace the return of an employee who has survived a serious illness. But that is not always the case. Below, we outline the Top Five steps that an employee must take when returning to work.
  1. 1.       Provide written notice. You have overcome your initial diagnosis but will still need to follow up with your doctor for monitoring and additional treatment. The first step to returning to work is communicating with your employer about your condition. Though providing details about treatment schedules or follow-up visits can put an employee in an embarrassing position, you have an obligation to do so in order to trigger your rights under the FMLA. Though providing all of the particulars may not be necessary, you will need to discuss your diagnosis, the details of your treatment regimen, and how your work schedule will be impacted. In addition to the FMLA, you may also have rights under the Americans with Disabilities Act ("ADA"), but, again, those rights will only be triggered by putting your employer on notice of your medical condition.  
  1. 2.       Continued communication is paramount. You gave your employer notice about your medical situation, but your obligation is not done there. You need to communicate with your employer about the accommodations you will need to be successful at your job. Whether this is the need to work cut your hours, work remotely, or take intermittent leave to attend treatments, merely telling your employer of your diagnosis is not enough. Despite the uncomfortable nature of this conversation, you must communicate regarding the accommodations you need and keep your supervisor informed of how well the accommodations are working.
  1. 3.       Promote cooperation. Hand-in-hand with the need to communicate is the need to cooperate with an employer and your HR department. If your employer needs additional medical information, provide it. If HR needs to speak with your physician, allow them. Being intentionally obstructionist or simply failing to provide the information requested does nothing but strain your employment relationship and weaken any potential claims that you may have. It is an uncomfortable but necessary step.
  1. 4.       Know your rights. As noted above and subject to some limited exceptions, most employees who have worked with their employer for twelve months are permitted to take twelve workweeks of leave in a twelve month period. Additionally, it is important to note that employees who have exhausted their leave entitlement rights under the FMLA still have the right to take leave under the ADA. The standard for evaluating a disability is different under the ADA than it is under the FMLA (and perhaps more rigorous), which is why it is crucial for you to provide complete information to your employer so that it may determine the extent to which you require leave. 
  1. 5.       Be specific.  Employees who are either going on or coming off of FMLA leave often feel as though their employers are doing them a favor by allowing them to be away from work.  First of all, you should relieve yourself of this feeling as the employer is doing no more than they are required to by law. Second, this feeling often leads employees to accepting a supervisor's promise without putting anything in writing. All too often, a supervisor will tell an employee, "Don't worry about it. Do what you have to do. We'll work it out." My strong recommendation is to graciously accept the supervisor's well wishes but very tactfully insist that a plan be put into writing. You want to be absolutely clear that you are taking leave to obtain medical treatment and be definitive in the types of accommodations you are requesting and the reasons for those accommodations. Even the best employment relationships can turn sour. Moreover, your well-wishing supervisor could leave and be replaced with someone who does not care at all about your health. Get everything in writing. It may be uncomfortable in the short run, but will protect you as you move forward with the company and with treatment.
                Employees returning from FMLA leave have already overcome numerous adversities in order to get back to work. Dealing with a difficult employer can be a challenge, but it is one that is surmountable. Remember the steps that we have outlined above, but also be sure to educate yourself on the law. There are additional requirements under the FMLA not discussed here and employee protections are rarely absolute. Regardless, you should never feel that your employer is doing you a favor by allowing you to take your statutorily protected right under the FMLA. 

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