You’re Damned if You Automatically Fire an Employee Who Has Cancer

Posted: September 12, 2014 in Disability Liability, Discrimination, Hiring and Firing

I greatly admire employees who are able to work while battling a life threatening disease like cancer. Employers also face difficulties when they learn that one of their employees has cancer, albeit not as great as the employee’s struggles. If you are an employer of any size, sooner or later you will face these issues. The private employers whom I have counseled are, of course, very sympathetic. Most will bend over backwards to help their employee, often to the detriment of everyday operations.

Employers often wonder what they can and what they should do in these situations. Is the employee qualified to work? Do we have to give the employee time off? How much? Does it have to be paid? What do we do if the employee’s performance is slipping? Do we have to allow work from home? Do we have a right to obtain medical information? Can we replace the employee temporarily? Permanently? What if the employee does not want to come back to work? Do we have to provide severance? Do we have to pay the employee’s medical insurance?

The answers to all of these questions is beyond the scope of this article, and will vary according to the law of your jurisdiction and, as to federal law, the number of employees you have. What you should not do is make any negative assumptions about a person with cancer. That’s what this employer appeared to do: http://www.huffingtonpost.com/2014/09/11/woman-laid-off-cancer_n_5806194.html. It now appears that the employer is facing a public relations backlash, and potentially serious legal ramifications.

Under Massachusetts law, if you have six or more employees, you are subject to the provisions of state law comparable to the Americans with Disabilities Act (which currently applies when you have 15 or more employees). Generally speaking, under both laws, you cannot simply terminate someone because they are disabled or facing a disabling disease, or because you think that they are disabled. There may be protections under other laws as well.

If these laws apply, you have an obligation to consider reasonable accommodations, including a leave of absence. That does not necessarily mean that you have to provide a leave of absence, especially a lengthy or open-ended one. Each situation is different, and must be separately evaluated. What you also should not do is to automatically terminate an employee after 12 weeks of FMLA leave, which some employers have learned the hard way. You may also have to consider work at home, and intermittent time off for treatment, as well as other accommodations.

The above being said, you still have the right to operate your business. You owe it to your business and your other employees to set clear standards of conduct and performance and to hold employees accountable. Cancer does not discriminate. It strikes the best employees, and it strikes employees who are not the best. Some employees will want to come to work everyday, if possible. Others will, understandably, want to focus their energies on their treatment and their family. As an employer, you will have to carefully consider how to strike a balance between accommodating the employee, and not harming your business. I wish I could tell you that this was easy, but it’s not. But if you face it head on like other business challenges and seek sound advice, you can get through it.

By Adam P. Whitney

Advertisements
Comments
  1. David Lucas says:

    It’s about time we received a new damnedif article!

    [logo]
    DAVID R. LUCAS, Esq.
    One Nelson Terrace, Suite D
    Melrose, MA 02176
    TEL: 781.665.2200
    FAX: 855.665.2201
    http://www.LucasLawGroupLLC.com
    Statement of Confidentiality
    The information contained in this electronic message and any attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or privileged information. If you are not the intended recipient, please notify Lucas Law Group, LLC immediately at (781) 665-2200 or Lucas@LucasLawGroupLawGroupLLC.com and destroy all copies of this message and any attachments.
    P Please consider your environmental responsibility before printing this e-mail.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s