Diversity Woman Magazine
Medical leave issues can easily trip up employees and employers. It pays to know your rights.
BY Katie Morell
Daniele Bien-Aime was in the middle of a work meeting on April 15, 2011 when her phone started vibrating uncontrollably. When she was finally able to break away, she’d missed 10 calls from the same number. Without checking her voice message, she called the number back.
The voice on the other end belonged to her primary care physician. “Daniele, you have breast cancer,” the doctor said. Upon hearing this news, Bien-Aime, 42, found it difficult to breathe. She left her office, got in her car and began to scream.
Bien-Aime was told she would need a bilateral mastectomy. The next day, she submitted FMLA (Family Medical Leave Act) paperwork and was granted 12 weeks leave without pay, but with full health benefits. When she wasn’t physically able to go back to work after three months, her company extended her leave. She was slated to return in November 2011.
“But just before I was to come back, I received a letter saying that I’d been terminated,” says Bien-Aime. “They gave away my job.” To make matters worse, Bien-Aime was struggling through a failing marriage and, with mounting medical bills, she was unable to pay rent. She received an eviction notice the same week.
Family members pitched in to pay the bills while Bien-Aime sought legal help through a local non-profit organization for low-income families. It took time and a significant emotional toll, but a few months later Bien-Aime was reinstated in her job and, in 2012, returned to work cancer-free.
Issues relating to medical leave in the workplace are unfortunately common and can stem from employees and/or employers not know their rights, and can even include subtle discrimination. Vivienne Parra was diagnosed with breast cancer in 2009. When she requested FMLA, her colleagues verbally badgered her. “I would get comments about my appearance, like, ‘For a cancer patient, you don’t look sick,’” she remembers. “It was pretty rough.”
She took leave and then found out that she’d been terminated before having the opportunity to return to work. Parra was distraught and contacted the EEOC (U.S. Equal Employment Opportunity Commission), which provided her with a list of lawyers for possible representation. It took her a few years to settle in with a law group and she is pursing legal action.
Not all scenarios end this way. If you are looking to take extended medical leave, follow of this step-by-step guide to ensure the best outcome.
Step #1: Check your employee manual
You are pregnant. Or need knee replacement surgery. Or your spouse, parent or child is in need of round-the-clock care for a finite period of time. Before going to your HR representative, pull out your employee manual. If you don’t have an employee manual, look at your benefits package. Here, you will find your employer’s rules governing time off.
“Some companies will require you to burn through your sick days before taking FMLA,” says Patricia Hunt Sinacole, CEO of First Beacon Group, an HR consultancy. “You will want to check the requirements specific to your employer and see how many days they allow at 100 percent pay, how many days at 50 percent, 25 percent, and so on.”
Step #2: Know your FMLA rights
In order to qualify for FMLA (up to 12 weeks off in a calendar year), you must work for a company with 50 or more employees. While you don’t need to work on-site, your company must employ at least 50 people within a 75-mile radius of headquarters. In addition, you are required to have worked at least 1,250 hours at that company (full-time hours) over the last 12 months.
FMLA can be granted to employees caring for a newborn or a newly adopted child. Leave is also available to persons unable to work because of a serious health condition or those who need to care for an immediate family member with a health problem.
Step #3: Circulate your request
“Put your FMLA request in writing and make sure it goes to HR and to your immediate supervisor,” recommends Daniel Ross of Ross Law Group. Once you explain your situation, it is up to your company to initiate FMLA. They may require you to bring verifying documentation from your doctor. Note: FMLA benefits go into effect only when your employer starts the process. This fact can cause problems if your HR representative sits on the request while you go on leave, so make sure to hound them until you have it approved and your reinstatement (return to work) date is agreed upon.
In the event of an unplanned leave (i.e. resulting from a car accident or the like), Hunt Sinacole suggests tasking a friend or family member with contacting your employer to alert them of your condition. This will solve confusion around future absences.
Step #4: Stay in touch
If you have the luxury of planning for medical leave, discuss a communication plan with your employer before you head out. “Ask them how they would like to remain in touch, if that is sending email updates every Friday or checking over the phone during weekly staff meetings,” says Hunt Sinacole.
Extending your leave
If, like Bien-Aime, you are not able to return to work after 12 weeks, talk with your employer about the possibility of extending your FMLA. This may be available on a case-by-case basis based on your employer’s discretion. Your employer may also have short- or long-term disability plans, which could help pad your time off.
ADA (American with Disabilities Act) can help employees who need certain days off for their medical condition, i.e. chemotherapy treatments, after FMLA dries up. “ADA doesn’t give you more days off, but if you can do your job with reasonable accommodation from your employer—meaning a modification of your schedule, for example—they must do that by law,” says Thom K. Cope, partner at Udall Law Firm. “But if your accommodation presents undue economic hardship to your employer, they will not be required to accommodate you and you could lose your job.”
What happens if your job is gone when you try to come back from FMLA? In this case, document the facts and present them, in writing, to your supervisor and HR representative the same day if possible, says Ross. “Then go through your corporate structure and file a complaint,” he adds. If that doesn’t work, call an attorney.
Discrimination is also often cited in medical leave cases. If you find yourself in a scenario where your job vanished before you take leave (maybe there was a consequential downsizing or layoff out of the blue), fact action is also recommended. As Ross explains, it is illegal for a company to retaliate against an employee for requesting medical leave. If you’ve been the victim of discrimination or retaliation, call an employment attorney and then file a complaint with the EEOC.
At press time, Parra, the woman allegedly fired for taking leave to recover from breast cancer treatments, was in the middle of a lawsuit with the help of the EEOC.
Says her lawyer, Tom Harrington, an associate at The Employment Law Group, “We are beginning the discovery state and hoping to get a resolution with monetary damages for Vivienne. This is an unfortunate situation and we plan to prosecute it vigorously.”
Katie Morell is an independent journalist based in San Francisco. Read more of her work at katiemorell.com.
Medical Leave Resources
Family Medical Leave Act, U.S. Department of Labor
Americans with Disabilities Act, U.S. Department of Justice
U.S. Equal Employment Opportunity Commission