Dear HR:
My employee is being tested for cancer. While there is a definite cancer diagnoses – my employee’s doctors are still doing tests to see what course of treatment will be required. The employee is trying to be proactive and called me to find out about our company benefits. What benefits would apply… disability, medical leave, etc.? This is the first time I’ve had a seriously ill employee whose condition will definitely impact my company. We are a small “mom & pop” shop –so news and gossip travels fast, and any absences due to the employee’s medical treatments will effect everyone’s work schedule. Please tell me the appropriate steps that I as an employer need to take to minimize this upcoming impact as well as any advice I need to tell my employee.
HR Answer,
Sorry to hear that your employee is ill. A cancer diagnosis ranks among the most complex workplace health issues employers have to deal with. Here is a very general outline of the next few steps you will need to take to ensure you stay compliant with state and federal laws regarding an employee’s serious medical condition:
1) Privacy Laws: First have a private yet frank discussion with your employee, discussing the fact that privacy laws prohibit management from openly discussing the employee’s health status. You will need to determine who on your staff must know about the situation – the supervisor, or any HR staff member that would be directly involved in any of this employee’s medical leave paperwork. Review with your staff the privacy laws that they must adhere to.
2) Applying for Medical Leave: Identify the organization’s work/flex policies and services, such as employee assistance programs services and/or benefits such as paid time off or sick time the employee may be eligible for. Immediately start the process to determine Medical Leave eligibility. Medical Leave as outlined by the federal Family and Medical Leave Act (FMLA) is a federal law providing eligible employees with up to 12 weeks of unpaid leave to attend to a serious illness, such as cancer. Many states have similar family medical leave laws that are equal or more generous for eligible employees such as the California Family Rights Act (CFRA) and the Oregon Family Leave Act (OFLA).
3) Keeping the job open while the Employee is out on sick leave: While you may not liable for paying wages to this employee while on medical leave, you may be required, typically by law, to keep this employee’s job open for certain periods of time pending their return after treatment. In the meantime, you may absolutely hire someone part time or full time to carry out the employee’s duties.
4) Informing the Staff: An employer may not explain to other employees why an employee with cancer has been absent from work if the absence is related to cancer or another disability. Although the employee’s co-workers and others in the workplace may be concerned about the employee’s health due to frequent absences, an employer may not reveal that the employee has cancer. An employee, however, may voluntarily choose to tell co-workers and others about their cancer diagnosis and about treatment options. However, even when an employee voluntarily discloses that she has cancer, the employer must keep this information confidential consistent with the ADA.
5) Accommodations during treatment: Keep in mind that there are other federal and state labor laws, such as anti-discrimination laws like the Americans with Disability Act (ADA) which may also impact how an employer assesses or grants sick time or medical leave. Cancer is a serious health condition and is considered also be a disability. Under both the ADA Amendments Act (ADAAA) and the state law, if their condition substantially limits one or more major life activities, it may be a disability. Employees may seek accommodation of their disability via a leave of absence for treatment/recovery or a part-time or reduced schedule to allow them to return to work in a modified manner. If an employee remains or returns to work during treatment they may be entitled to reasonable accommodations: flexible or modified hours or duties to deal with treatment schedules, side effects or varying energy levels. According to statistics, the vast majorities of patients undergoing cancer treatments want or need to keep working for financial reasons. Ongoing communication between employee and employer will be important because there will be times patients feel well or don’t feel well and managing expectations about what is possible or impossible will keep everyone happy.
State and federal leave laws are intricate and complex. For assistance with the ADA, FMLA, or state family leave determinations and tracking, or if you have questions about other employment issues, please feel free to contact Cardinal. Check out our Sick Leave Checklist to see options in crafting a Sick Leave policy for your business.