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Full-time leave for medical treatment? Make sure it’s what employee wants

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in Employment Law,Human Resources

When employees become ill, employers can find themselves in a no-win situation. Faced with a sick employee, you may recommend short-term disability leave to receive medical treatment. But that could violate the ADA if the employee neither needs nor wants all that time off.

So before you offer full-time leave, ask what kind of accommodation the employee wants. Consider all the possibilities and document the employee’s request. That way, he can’t come back later and claim you forced him to take leave.

Never impose your own preconception of what is best for the employee.

And don’t try to force leave as a way to have the employee quickly use up his FMLA entitlement. Some people handle medical treatment better than others and may prefer isolated days off rather than a continuous block of time. That lets the employee stretch out FMLA leave beyond the immediate medical crisis.

Recent case: Richard Unangst was a heating and air conditioning technician, installing and repairing systems for customers. He was diagnosed with non-Hodgkin’s lymphoma (a form of cancer) and had to undergo chemotherapy treatments.

His employer suggested a short-term disability leave of three months to facilitate treatments. Unangst went out on that leave. Three months later, his cancer was in remission and he was cleared to return to work.

Meanwhile, the company had gone through a period of slow business, meaning far less work for its technicians. In fact, it laid off a number of employees while Unangst was on disability leave. By the time Unangst was ready to return, it had no work for him.

Unangst sued, alleging that he had been forced to take disability leave and that his employer hadn’t engaged in the ADA-required interactive accommodations process. He claimed he could have worked through the chemo treatments if the company would have modified his schedule.

Fortunately for the company, Unangst had earlier said the treatments left him unable to work due to nausea, anxiety and fatigue. Plus, he offered no evidence that he actually asked for anything other than full-time leave. The court dismissed his failure-to-accommodate claim.

Unangst also argued that he was fired in retaliation for becoming disabled and needing accommodations. But the company won that claim, too, based on its clear documentation that layoffs occurred across the company due to economic problems. (Unangst v. Dual Temp Company, No. 10-6811, ED PA, 2012)

Final note: You may be wondering how someone who has been cleared to return to work with no restrictions can still be disabled. That’s because the ADA assumes individuals with cancer are disabled even if their diseases go into remission. While their disease is in remission, they are still protected from discrimination based on disability. When their disease is active, they are entitled to reasonable accommodations for treatment.

It remains an open question whether someone who has been free of cancer for five full years—the standard definition of being cured—is still covered by the ADA. As always with the ADA, each case is judged on its individual facts, even though the presumption is that someone with cancer is probably disabled.

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