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The Family and Medical Leave Act and Cancer

By on December 11th, 2013 Categories: Day-to-Day Matters

Many cancer patients are holding down full-time or part-time jobs and do not have the financial luxury of leaving those positions in order to attend to multiple medical appointments, lengthy chemotherapy sessions, and recovery from surgical procedures. You may be one of these people. So what do you do if you face a serious diagnosis and are trying to figure out how to balance work with all the time off you will need to undergo life-saving treatments?

The Family and Medical Leave Act (FMLA) is an important Federal law that allows certain employees to take the time they need, up to a maximum of 12 weeks, without losing their jobs or their health insurance as a result of repeated absences. The FMLA was enacted in 1993, signed by former President Clinton, and was the first federal law that afforded employees the right to take an extended absence when faced with a serious illness or injury.

Under FMLA, certain employees may take up to 12 weeks of leave time in a 1-year period for reasons related to a serious medical condition that renders the employee unable to perform the essential functions of his or her job. These reasons may include time off to obtain treatment or to recover from treatments, among others. The leave time does not necessarily have to be taken in consecutive days. Instead, employees are permitted to take days off intermittently. This provision meets the reality of life for cancer patients. Sometimes patients are able to return to work in between treatments, and do not need to use 12 consecutive weeks of leave at one time but prefer to spread it out throughout the year.

When you are diagnosed, you should find out if you are covered by the FMLA. Public employees are covered by the FMLA, whether they work in a federal, state, or local agency or school district, after their first year of employment. If you work for a private company, your coverage depends on whether your employer has fewer than 50 employees within a 75-mile radius. If the answer is yes and, with certain exceptions, you have worked for that employer for at least 1 year, and completed at least 1,250 hours of work during that 1-year period, you are entitled to FMLA leave for qualified purposes.

To take FMLA leave, employees are required to give at least 30 days’ notice to their employer before leave begins. But if the need for leave was unpredictable, less than 30 days’ notice may be acceptable, but should be given as soon as possible. Employers may require the employee to provide written certification from a health care provider to attest to the serious medical condition justifying the leave.

While taking FMLA leave, you are entitled to continue receiving health insurance coverage in the same manner that you receive it while working. However, your employer is not obligated to pay your salary or wages unless it has an established policy to do so. You may be permitted to use your paid sick leave accruals during the FMLA leave period. Some employers require employees to also use their vacation or personal time or other leave accruals simultaneously with FMLA leave..

If you are not covered by the FMLA, you should ask your employer what your alternatives are. Some employers have generous medical leave of absence policies. These may be reflected in employee handbooks or in your union contract, if you are covered by one. Other employers, even without a formal policy, may allow you the time you need to take care of your medical needs. If either employers or employees have questions concerning the rights and responsibilities addressed by the FMLA, they should discuss their questions with an attorney or review the United States Department of Labor’s information regarding this issue at its website.

This article is not intended to provide legal services, or create an attorney-client relationship. The information contained herein is for informational purposes only and does not constitute legal advice. Online readers, subscribers, cancer patients, employers, and other interested parties should not act or rely upon information contained herein without specifically seeking professional legal advice.

Laura Wong-Pan is an attorney with Thomas, Drohan, Waxman, Petigrow & Mayle LLP, specializing in employment and labor law, and is a cancer survivor.

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