Q: I was diagnosed with cancer and took 10 weeks of FMLA leave for surgery and recovery. When I returned to work, I was allowed to work part-time as accommodation under the Americans with Disabilities Act for eight weeks while I underwent chemotherapy and radiation treatment. I was grateful to work for such an understanding employer. This “understanding” has recently disappeared. My manager told me that unless I could bring my sales to at least 90% of last year’s levels by the fiscal year-end in October, I would be fired for not meeting my annual sales goals in the last 12 months. There’s no way I can meet my monthly sales goals and catch up on about four months of lost or reduced work. That seems incredibly unfair.
A: We have to give your employer an “A” because they recognize that your situation falls under both the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) and gives you time for treatment and recovery – but yours Supervisor gets a capital “F” for threatening to terminate your employment. Not only is this unfair, it is illegal retaliation under both the ADA and the FMLA.
Under the FMLA, you were entitled to take up to 12 weeks unpaid leave because of a serious illness (and cancer is certainly an option); Part-time work is a “reasonable accommodation” under the ADA for an employee who is “disabled.” Under this law, cancer and cancer treatment are considered disabilities — and working part-time seems like a reasonable option to help you stay in the job during your recovery.
The employer is prohibited fromexculpatory or otherwise discriminatory” Employees exercising their rights under the FMLA. Likewise, employers are prohibited from “compelling any person to intimidate, threaten or interfere with the exercise or enjoyment of any rights granted”. under the ADA.
If you are retaliated against for exercising your FMLA rights can complain at the Department of Labor’s Wages and Hours Division, or contact an attorney who can file a civil suit on your behalf. A complaint of discrimination for violating the ADA must be filed with the Equal Employment Opportunity Commission before you can file a claim against your employer. While EEOC gives some hints You should consult an attorney before proceeding with how to file a charge.
Employers who violate the FMLA may be required to pay damages equal to “wages, salaries, unemployment benefits or other compensation” lost by the employee as a result of the wrongful act. If the employer has not acted in good faith, a court may also award a penalty equal to the “compensation payment” awarded. In addition, a fired or demoted worker may be eligible for reinstatement. Employers who willfully violate the ADA may be liable for punitive damages and for lost wages and benefits.
Unfortunately, FMLA and ADA violations are commonplace. In 2020 – a year that saw many workers working from home – some 966 FMLA Complaints were submitted to the WHD. A slightly larger number of complaints are filed in the federal courts each year. In 2021, the EEOC reported almost 23,000 charges of ADA discrimination had been submitted to the Commission. (Sickness complaints accounted for only 3.2% of all complaints received.)
Daniel A. Gwinn, attorney at law in Troy, has a practice focused on employment law, civil litigation, probate, and trusts and estates. Contact him with your legal questions at [email protected] or visit the website at gwinnlegal.com. “Ask the Lawyer” is for informational purposes only and should not be relied upon as legal advice.
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