In September 2014, the story of an employer who laid off a woman shortly after learning of her cancer diagnosis went “viral,” moving quickly from local to global news coverage. The story highlights an important question for employees and their advocates about how state and federal employment laws protect people when they are diagnosed with cancer or another serious illness. Federal laws like the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) offer some protection, but they do not apply to many small employers. State laws, such as New Jersey’s Law Against Discrimination (LAD), sometimes offer broader protections.
A local news site in Pennsylvania reported on a woman who notified her employer of about 12 years that she had been diagnosed with cancer. The employer reportedly sent her a handwritten letter informing her that that he was laying her off without pay, noting that she would not be able to fulfill her employment duties while also undergoing cancer treatment. The story took off when a family member posted a copy of the letter to the internet.
The woman has avoided media attention and is reportedly focusing on her treatment. The employer has stated that everyone has misinterpreted the letter, and that he intended to help her by giving her time away from work. Local news reported that he did not contest her unemployment claim, which gives her 26 weeks of benefits. Nothing else has appeared in the news about the story since mid-September.
The ADA generally prohibits employment discrimination on the basis of disability, and it requires employers to make reasonable accommodations for employees with disabilities. Amendments to the ADA in 2008 expanded the definition of “disability” to include many of the effects of cancer, both during treatment and while in remission. This can protect employees from termination or other adverse actions based on a cancer diagnosis, or the diagnosis of a family member, but the ADA has limitations. An employee must be able to perform the “essential functions” of his or her job to qualify for ADA protection, see 42 U.S.C. § 12111(8), and the law only covers employers with 15 or more employees. The New Jersey LAD applies to companies with fewer than 15 employees.
Federal and state laws may also protect employees diagnosed with cancer, or who have a family member diagnosed with cancer. The FMLA allows employees of a covered employer to take up to 12 weeks of unpaid leave during a year, provided they have worked for the employer for at least one year or 1,250 hours. The employee’s job and benefits, including health insurance, are protected during that time. The New Jersey Family Leave Act allows an employee unpaid leave for the serious illness of an immediate family member. Both statutes only apply to employers with 50 or more employees.
A Texas lawsuit demonstrates a claim of discrimination based on a cancer diagnosis. The former CEO of the retail chain Tuesday Morning claimed in a 2012 complaint to the Equal Employment Opportunity Commission (EEOC) that she was fired because of her breast cancer diagnosis. She filed suit in a Texas court in May 2013, alleging disability discrimination and retaliation under state law. Mason v. Tuesday Morning Corp., No. CC-13-02863-E, am. pet. (Tex. Co. Ct., Dallas Co., May 20, 2013). The parties settled the case in April 2014.
If you are dealing with employment discrimination or other unlawful practices in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or (646) 867-7997 to speak to a skilled and experienced employment attorney.
More Blog Posts:
New Jersey Law Allows Victims of Domestic Violence and Sexual Crimes to Take Unpaid Work Leave, The New Jersey Employment Law Firm Blog, November 4, 2013
ADA Protects Workers Suffering From Postpartum Depression in New Jersey, New York, and Nationwide, The New Jersey Employment Law Firm Blog, October 31, 2013
Breast Cancer Patient Settles Discrimination Lawsuit Filed Against New York Employer, The New Jersey Employment Law Firm Blog, July 16, 2013