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WORKER TAKES TIME OFF FOR CANCER SURGERY AND RECOVERY, TOLD ‘ANNUAL PERFORMANCE’ NUMBERS ARE TOO LOW

QUESTION:  I was diagnosed with cancer and took ten weeks’ FMLA leave for surgery and recovery. When I returned to work, I was allowed to work part-time for eight weeks as an accommodation under the Americans with Disabilities Act while I underwent chemotherapy and radiation treatment. I was thankful I worked for such an understanding employer. That “understanding” disappeared recently. My manager told me that I would be terminated for failing to meet annual sales goals for the last 12 months, unless I could get my sales numbers up to at least 90 percent of last years’ level by the end of the fiscal year in October. There is no way I can meet monthly sales goals and make up for about four months missed or reduced work. This seems incredibly unfair.

ANSWER:     We have to give your employer an A for recognizing that your situation was covered under both the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) and giving you the time for treatment and recovery– but your manager gets a great big F for threatening to terminate your employment. That is not only unfair, but also illegal retaliation under both ADA and FMLA.

Under the FMLA you were entitled to take up to 12 weeks’ unpaid leave for a serious medical condition (and cancer certainly fits the bill); part-timework is a “reasonable accommodation” under the ADA for an employee who is “disabled.” Under that law, cancer, and treatment for cancer, are viewed as disabilities – and allowing you to work part-time sounds like a reasonable way to help you stay on the job while you recovered.

An employer is barred from “discharging or in any other way discriminating against” employees who exercise their rights under the FMLA. Similarly, employers are forbidden to “coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of … any right” granted under the ADA.

If you are retaliated against for exercising your FMLA rights you can file a complaint with the Department of Labor’s Wage and Hour Division, or you can contact an attorney who may file a civil lawsuit on your behalf. A charge of discrimination for violating the ADA must be filed with the Equal Employment Opportunity Commission before you can file a lawsuit against your employer. While the EEOC provides some guidance on how to file a charge, you may want to contact an attorney before you do so.

Employers who violate the FMLA may have to pay damages equal to “any wages, salary, employment benefits, or other compensation” the employee lost as a result of the illegal action. Where the employer’s actions were not in good faith, a court may also award liquidated damages, an amount equal to the “compensatory damages” awarded. In addition, a fired or demoted worker may be entitled to reinstatement. Employers who willfully violate the ADA may be liable for punitive damages as well as paying for lost wages and benefits.

Violations of the FMLA and ADA are, unfortunately, common. In 2020 – a year when many workers labored from home — some 966 FMLA complaints were filed with the WHD. A slightly larger number of complaints are filed each year in the federal courts. In 2021, the EEOC reported almost 23,000 charges of ADA discrimination had been filed with the commission. (Complaints involving cancer made up just 3.2 percent of all complaints received.)

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]