Supporting Employees with Breast Cancer
Breast cancer is the second most common cancer among women in the United States. According to the CDC, about 264,000 women get breast cancer and 42,000 women die from the disease each year. Men also account for about 1 in 100 cases.
If you have an employee with cancer, they will likely need time off for treatment and recovery. They will possibly also require accommodations. They may be open about their experience or guarded about what they share with teammates. Supporting employees who have a long-term illness like breast cancer is among the most important responsibilities for employers. Your support, even if small, can make a big difference.
You may also have certain legal responsibilities when an employee informs you of a medical need. In this post, we want to introduce you to a few of the major laws you should know about.
Federal Laws That May Apply
The Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) provides employees with unpaid, job-protected leave and benefits continuation in certain circumstances. FMLA generally provides 12 weeks of leave in a 12-month period (more if caring for an injured or ill service member). To take FMLA leave, an employee must work for a covered employer, be eligible, and be using the leave for a covered reason. Let’s look at each in turn.
An employer is a covered employer if they have 50 or more employees for 20 or more weeks in the current or previous year.
An employee is eligible if they have worked for the employer for at least 12 months, worked at least 1,250 hours for the employer in the 12 months before the leave, and work at a location where the employer has at least 50 employees within 75 miles.
One of the reasons employees can take FMLA leave is for their own serious health condition. FMLA doesn’t have a list of specific conditions that qualify. But cancer is almost certain to meet this standard. One of the tests to qualify as a serious health condition is that the condition requires multiple treatments, and if the employee didn’t get treatment, they would likely be absent for more than three consecutive days. The following are covered reasons for leave under FMLA:
- The birth of a child and to care for the newborn child within one year of birth
- The placement of a child for adoption or foster care and to care for that child within one year of placement
- To care for the employee’s spouse, child, or parent who has a serious health condition
- The employee’s own serious health condition
- Any qualifying exigency because the employee’s spouse, child, or parent is a military member on active duty
Returning from FMLA
Upon return from FMLA leave, employees must be restored to the same job or one nearly identical to it with equivalent pay, benefits, and other employment terms and conditions. To be truly equivalent, the job must involve the same or substantially similar duties and responsibilities and require substantially equivalent skill, effort, responsibility, and authority. Equivalent jobs would also have the same premium pay options and overtime opportunities. So, unless you can guarantee that the different role is equivalent to the old one in all these ways, it would not be a good idea to place the employee in a different role.
There is, however, a notable exception. Employees on FMLA are not protected from employment actions that would have affected them had they been working instead of taking leave. For example, if a substantial decrease in sales required a company to eliminate a set of roles and lay off or transfer those employees, the person on FMLA has no greater right to keep their job than anyone else. In situations like these, where a position has been eliminated while an employee is on a protected leave (of any kind), be sure to document legitimate business reasons for the decision.
The Americans with Disabilities Act
An employee with cancer would likely have protections under the Americans with Disabilities Act (ADA). This federal law, which prohibits discrimination against people with disabilities, applies to employers with 15 or more employees. The ADA generally entitles employees to accommodations, which can be either a leave of absence or on-the-job accommodations, such as telework or assistive software. Leave under the ADA would come into play if you’re not covered by FMLA, if the employee isn’t eligible for FMLA, or if the employee has exhausted their FMLA leave and needs more time off.
There’s often confusion about what ADA requires and what its terms entail. Fortunately, employers can feel confident in their application of the law by reviewing and understanding its most important concepts. In a previous blog post, we defined and analyzed the terms disability, undue hardship, reasonable accommodation, and interactive process. These are the big four terms that serve as the foundation of your responsibilities as an employer under the ADA.
State Laws That May Apply
Depending on where the employee works, there may be state-specific laws that go above and beyond the federal requirements or that place additional restrictions on employers. State family and medical leave laws and state sick leave laws are the main ones to investigate. As with most employment laws, be sure to follow the most employee-friendly provisions of all the applicable laws.
Personal Leave of Absence Policy
Whether or not your organization is subject to the laws above, you have the option of implementing a personal leave of absence policy. Such a policy provides flexibility in the event that an employee experiences a personal issue and needs leave not covered by the law or in excess of what they are already offered. Such leaves are discretionary; you can decide which employees the policy would apply to and what the criteria would be to be eligible—as long as it doesn’t discriminate on the basis of a protected characteristic (e.g., race, gender, age).
In general, when an employee is out for health reasons, you should inform coworkers only that the employee is on a leave of absence. The reasons for the leave are not any of the coworkers’ business, and the employee might not want the reasons known by others. And, of course, several laws require employers to keep this information confidential. Employees, however, may choose to share with their coworkers why they need leave, and we recommend supporting them however they feel comfortable.