A Fresh Look at ADA and FMLA

Both laws provide significant protection and benefits for people with cancer and other catastrophic diseases, but neither is a perfect guarantor of fairness.

Over the course of 60 years, CancerCare has offered free professional support services to more than two million people with cancer, as well as to their family, friends, employers and health professionals. The largest nonprofit organization of its kind, CancerCare provides counseling, education, financial assistance and practical help to people of all ages, with all types of cancer and at any stage of the disease.

Each year, CancerCare Connect offers more than 70 national telephone education workshops that explore workplace issues, cancer treatment, fatigue, pain management and specific cancer types. A recent series of three one-hour sessions staged by CancerCare in collaboration with the American Association of Occupational Health Nurses and CHD Meridian Health Care, titled "Strength for Caring, Living, Coping and Working with Cancer" attracted thousands of callers from the U.S., Canada and around the world. This article is condensed from a workplace-oriented session that featured L. Susan Slavin, a senior partner of the law firm Slavin, Angiulo and Horowitz, LLP, national litigators on behalf of people with disabilities.

When people are diagnosed with a catastrophic illness — be it cancer, multiple sclerosis, epilepsy, etc. — they are thrust into a world of unknowns. The first is their potentially life-threatening illness. They’re thinking they’re going to die, then they have to fight with their insurance companies about managed care issues, and they’re worried about keeping their job. The last thing they really think about is the workplace itself because it tends to be very supportive in the beginning. I’ve seen this time and again: "We’re with you all the way. Just get better." However, when the wigs come on and the hair comes off, patients begin to see different treatment in the workplace.

Employment discrimination is subtle and amorphous. Things happen, schedules change and people are "laid off" for reductions in force. There’s always smoke and mirrors around the whole thing, and unfortunately in many instances, patients are not aware that it’s even going on.

How the courts shape the law

Congress passed the Americans with Disabilities Act with a clear intent to protect seriously ill people, but nearly 10 years of case law have dramatically altered the landscape. In particular, the Supreme Court has narrowed the definition of people’s entitlements, addressing many questions as matters of benefits administration rather than civil rights for the disabled. Thus, the court ruled that a partially paralyzed professor whose left side was paralyzed couldn’t be accommodated under ADA because he was able to work, while a worker who’d lost his job because he had AIDS wasn’t protected by ADA because he’s received Social Security disability benefits, which meant he wasn’t able to work at all. The Supreme Court ruled last year that an auto worker with carpal tunnel syndrome wasn’t entitled to job accommodation because she could get through most basic tasks of daily living and therefore wasn’t disabled.

This is the Catch-22 that cancer patients face. The courts are saying that they are either so healthy and able to function that they don’t meet the definition of disability under the ADA — or that they’re so sick that they can’t perform essential tasks, even with accommodation, and so they don’t qualify for ADA protection.

ADA basics

Even so, the ADA is a wonderful law that has enabled people to continue to work free of discrimination. Precisely what does it say?

ADA applies to employers with 15 or more employees. In addition, every state has its own human rights law. Many of them mirror the ADA protections, but the trigger point for coverage drops as low as two employees in some states. Protection is especially important in smaller companies, where I’ve seen a tremendous amount of discrimination in well over a decade of advocating for the catastrophically ill. The workplace culture, generally, improves once companies reach 25-50 employees and hires an HR staff that is well trained in ADA and FMLA issues.

To be covered by the ADA, workers have to meet certain eligibility requirements. First of all: Are they a disabled person? Under the ADA, there has to be an impairment of a major life activity, which includes but is not limited to walking, speaking, seeing, hearing, breathing, performing manual tasks and caring for oneself. In other words, it can’t be a temporary condition, like a broken arm.

In terms of the workplace, is the impairment actual or perceived? Is there a record of the impairment? A frequent issue with AIDS cases years ago was whether a perception existed that there was AIDS in the workplace. Even today we continually battle the myth that if an employee has cancer they can’t possibly do their job. A well-run HR department will maintain attendance and performance records that provide facts rather than impressions.

Once an impairment of a major life activity has been established the next inquiry is whether the employee is qualified for the job and can perform its essential functions. That’s a hard one when the individual has been dealt a horrific diagnosis but really wants to work. The overwhelming majority of cancer patients I’ve seen through the years have been willing to go above and beyond in order to continue working. That’s not surprising. Work provides people with a sense of identity — something routine that they could have some control over — and health insurance. In those cases where people are simply too sick to perform the essential functions of their jobs the ADA offers no protection.

What is an essential function of a job? It is different for each job. Basically the essential functions of the job are the core responsibilities or main components required to carry out the tasks of the job. Both the employer and the employee should have an understanding of the essential functions. To that end, we recommend that the employer maintain a written list of the essential functions for each job. This list or job description should be created and maintained well before anybody gets sick. The ADA and the state statutes require the employee to be able to perform the "essential functions" in order to be protected, but the laws add the third qualifier which is "with or without a reasonable accommodation."

What’s reasonable?

The concept of reasonable accommodation is not defined. Neither the Federal nor state laws list reasonable accommodations for cancer, blindness, multiple sclerosis, muscular dystrophy or epilepsy. The term is a fluid concept to be worked out between employer and employee.

An ADA claim is not a blank check. An employer doesn’t have to turn a full-time job into a part-time job, for instance, nor should a reasonable employee announce: "Well, I’m going to now work at home via the Internet, and you’re going to set me up with a satellite office." That’s over reaching. The employer can defend by establishing undue hardship, which is usually measured in terms of business finances. Note, too, that a reasonable accommodation for a large company may be very burdensome to a small company. The ADA does not require an employer to suffer an undue hardship in granting what the employee feels is a "reasonable accommodation." Neither the employer nor the employee should turn this into an adversarial situation. Often if an employer works with the employee to get through a really bad patch, they’ll end the day with an incredibly loyal employee.

There are many intersecting laws here with intersecting rights. Long term disability policies interact with the Family and Medical Leave Act, which intersects with COBRA’s coordination of benefits and influences Workers’ Compensation, which might have an impact on Social Security Disability, all of which is interwoven with the Employee Retirement Income Security Act as it applies to benefits. No wonder people get confused.

An employee who approaches their employer with an ADA question will surely have questions under the FMLA. If that person is too ill to carry on the essential functions of their job, then they are entitled to long term disability benefits. Case law has held, however, that an employee cannot be eligible for ADA protection and LTD benefits at the same time. It may not be kind or even ethical to terminate an employee who’s out on disability — thus raising his health insurance costs by four or five times while reducing his salary — but it’s legal.

So here we have a simple concept — civil rights for people with catastrophic illnesses — wrapped in overlapping issues of health, benefits, job security and an assortment of laws. The good news is that the HR department doesn’t need to master the intricacies of every one of these laws and entitlements. Instead, HR needs to know where to get help and information for people. (See the Resources section below.)

The FMLA factor

Case law is also starting to develop around the FMLA, which applies to companies with 50 or more employees. The FMLA requires employers with 50 or more employees (during 20 or more calendar work weeks in either the current or the preceding calendar year), provide eligible employees (employed for at least 12 months prior to the commencement of the leave, and who worked at least 1,250 hours in that 12 month period and worked at a worksite or within 75 miles of a worksite where the employer employs at least 50 employees) with an unpaid leave of up to a maximum of 12 weeks. The FMLA leave can be:

• For the birth of a child, and to care for the newborn child;

• For placement with the employee of a child for adoption or child care;

• To care for the employee’s spouse, son, daughter or parent with a serious health condition; and

• Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.

The FMLA does not provide entitlement for "significant partners" or "domestic partnerships." At the expiration of the FMLA leave the employee must be restored to the same or similar position they held prior to the leave. The employee is also entitled to have their health benefits continued through the FMLA period, but they must return to the workplace or the employer could get the premiums back.

One major aspect of FMLA is that it is unpaid, so many people just can’t afford to take advantage of the law. California became the first state to address this problem, legislating an entitlement deduction in the workplace. Twenty other states now have paid leave bills pending in their legislatures. There have been proposals on the federal level that payment for the FMLA should be akin to unemployment payments, but I doubt very much in this political milieu that that’s going to happen.

Employees are generally aware of FMLA, but they are unaware of how the computation is made. An employee will say: "Well, I have two weeks of paid vacation coming up plus a week of sick time. That’s three weeks plus 12 from FMLA, so I want 15 weeks." This is wrong. An employer can require that the employee use up accrued vacation, sick and personal time as part of the job-secure 12 weeks of the FMLA.

FMLA leave does not have to be taken all at once, but the challenge of administering intermittent leave merits an article in itself.

The employer is charged with the responsibility to give the FMLA leave. The employer cannot wait for the employee to spin off the magic words: "Can I have my eligibility under the FMLA?" No, the employer is charged as knowing that a situation is occurring with one of its employees — that there is an eligibility. The employer has to tell the employee of their eligibility. The FMLA requires an employee to give as much notice as reasonably possible, depending on the circumstances. The employer can always give the full 12 weeks. The employee is not required to use all 12 weeks at one time, and any unused time goes into what could be called the employee’s "FMLA bank."

The employees must be provided written notice of when their FMLA leave starts and when it stops — when they are required to go back to work. If they don’t come back to work when their period is up, then the employee can be terminated. Employees are also required to provide medical documentation if requested, except in an emergency situation. If the leave is for a medical reason, employees are required to provide documentation for themselves and for the person they are caring for. But remember, the FMLA leave can be for non-medical reasons, in which case the employer can request supporting documentation fitting the reason for the FMLA leave.

Setting boundaries

The employer does not extend FMLA leave, and it probably is not a good idea to do so. There is little reward in complicating a legal requirement with a discretionary element. That’s exactly what can happen, however, particularly at middle and lower management levels. Many times, an employee who is undergoing treatment will make an ADA or FMLA claim, and the immediate supervisor will say something like: "Look, go do what you need to do. You’ve got your job when you come back." The supervisor just wants to be a decent human being, but an individual’s generous impulses can easily become a contractual commitment.

The United States is basically an employment-at-will country — meaning the employment relationship can be terminated for any reason or no reason, as long as the rationale for termination is not discriminatory, or does not violate some provision of an employment contract or a collective bargaining agreement. Most employment handbooks will often state that the employee and employer share an at-will employment relationship and even note that the handbook itself is not a contract. Still, I will tell you from my experience that if a supervisor tells someone who’s going out on a disability, "We’ll always have your job for you," in many instances an orally binding contract has been created between the company and the employee. The solution? Conduct training seminars and send out memoranda letting supervisors know that while they may want to say all these wonderful, reassuring things, they don’t have the authority to speak for the company.

I hope you found the above overview both informative and helpful. If you have any legal questions you should contact an attorney. If you would like some additional information or materials, you can view some of the resources listed below.

More Business & Health Articles About This Topic:

Realistic Responses to Workers with Cancer (Aug. 15, 2003)

The Importance of Work (Living, Coping and Working with Cancer)

Resources:

CancerCarehttp://www.cancercare.org

The National Partnership for Women & Families http://www.nationalpartnership.org

The National Partnership for Women & Families offers a booklet, "Family Medical Leave Act." Write to them at 1875 Connecticut Avenue, NW, Suite 710, Washington, D.C. 20009 or call (202) 986-2600.

The American Bar Association Commission on Women in the Professionhttp://www.abanet.org/women

The American Bar Association Commission on Women in the Profession has developed a program called Legal Advocacy for Women with Breast Cancer that offers general information, speakers and referral listings for pro bono legal services. Call 312-988-5715.

Susan Slavin. A Fresh Look at ADA and FMLA.

Business and Health

Dec. 10, 2003;21.