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 for eight weeks as accommodation under the Americans with Disabilities Act while I underwent chemotherapy and radiation therapy. I was grateful to have worked for such an understanding employer. This “understanding” has disappeared recently. My manager told me that I would be fired for not meeting my annual sales goals in the last 12 months unless I managed to get my sales numbers up to at least 90% of the level of l year by the end of the fiscal year in October. I have no way of hitting my monthly sales goals and making up for about four months of missed or reduced work. It seems incredibly unfair.
A: We need to give your employer an “A” for acknowledging that your situation was covered by both the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) and giving you time to treat yourself and recover – but your manager gets a capital “F” for threatening to terminate your employment. This is not only unfair, it is unlawful retaliation under the ADA and FMLA.
Under the FMLA, you were entitled to take up to 12 weeks of unpaid leave for a serious medical condition (and cancer certainly does); part-time work is a “reasonable accommodation” under the ADA for a “disabled” employee. Under this law, cancer and cancer treatment are considered disabilities – and allowing you to work part-time seems like a reasonable way to help you stay at work while you recover.
An employer is prohibited from “discharge or otherwise discriminate” employees who exercise their rights under the FMLA. Similarly, employers are prohibited from “coercing, intimidating, threatening or obstructing any person in the exercise or enjoyment of … any right” granted under the ADA.
If you experience retaliation for exercising your FMLA rights, you can file a complaint with the Wage and Hour Division of the Department of Labor, or you can contact an attorney who can file a civil suit on your behalf. A charge of discrimination for violation of the ADA must be filed with the Equal Employment Opportunity Commission before you can take legal action against your employer. While the The EEOC provides some guidance on how to make a complaint, you may want to contact a lawyer before doing so.
Employers who violate the FMLA may be required to pay damages equal to “any wages, salaries, benefits, or other compensation” the employee lost as a result of the unlawful action. Where the employer’s actions were not in good faith, a court may also award damages, in an amount equal to the “compensatory damages” awarded. In addition, a dismissed or demoted worker may be entitled to reinstatement. Employers who willfully violate the ADA may be liable for punitive damages as well as payment of lost wages and benefits.
FMLA and ADA violations are unfortunately common. In 2020 – a year when many workers were working from home – some 966 FMLA complaints have been filed with the WHD. A slightly larger number of complaints are filed each year in federal courts. In 2021, the EEOC reported nearly 23,000 loads of ADA discrimination had been filed with the commission. (Complaints about cancer accounted for only 3.2% of all complaints received.)
Troy’s attorney, Daniel A. Gwinn, has a practice focused on employment law, civil rights litigation, estates, 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 considered legal advice.