I was fired because I have cancer
MONTHS after surgeons removed part of her jawbone
due to cancer, Adrienne Frank was still recovering. She needed a feeding tube
because she couldn’t eat, had trouble speaking and was suffering a lot of pain.
And more treatment was on the horizon: She had
received her sixth oral cancer diagnosis in 11 years when doctors found that
the cancer had spread to her soft palette.
But Frank’s 12-week employee medical leave,
guaranteed by the same federal law that provides time off for parents of
newborns, was about to end.
And Frank knew she couldn’t perform the
administrative duties required of her job in higher education.
“I wanted to go back to work,” said Frank, 35. “I was begging them, please give me more time so I can get a handle on all this.”
Instead, she was fired. Frank lost her income
and her health insurance.
She was stunned, but also saddened, she said in
a recent interview. “I was more hurt, I think, to have someone say: We don’t
care enough about you to help you through this.”
As cancer survival rates improve with advances
in detection and treatment, advocates say workplace laws have not kept pace
with the needs of patients and the demands of medical care.
Surgery can leave patients with short-term
disabilities, while chemotherapy and radiation can produce side effects such as
“chemo-brain”, a difficulty with concentration.
“The length of leave, 12 weeks, is not a lot for
people with a lot of cancers,” said Ann Hodges, an emeritus professor at the
University of Richmond School of Law.
It’s unclear how many cancer patients lose
employment because they’re not ready to return to work. But studies show that
just 40% are back at work within six months. After a year, it’s still just 62%.
Researchers have also found that loss of income
due to illness is a major contributor to bankruptcy – and that cancer patients
are more likely to declare bankruptcy.
Frank knows that some employers are very
supportive of employees stricken by cancer. With a previous employer, she took
three leaves and encountered no problems.
The manager at her previous job checked on her
progress and offered support. The termination from her last job, in 2015, was
so surprising “because of how accommodating and flexible my previous employer
had been”.
Employers don’t want to terminate an employee
with cancer, but the long-term absence of a worker can cut into profits or make
it difficult for the organisation to function efficiently, said Kate Bischoff,
an employment attorney and human resources consultant.
And most employers don’t want to hire a new
employee to cover the absence just to have to let them go once a cancer patient
recovers.
Employers “are often balancing the needs of the
employee with the goals of the business”, said Bischoff. Some employers will
try to soften the blow of a firing by offering a severance payment and several
months of insurance coverage, she said.
Thinking skills changed
Before Barb Rooney was diagnosed with breast
cancer, she was a staffing coordinator at a Twin Cities hospital, a job that
required her to schedule nurses to meet fast-changing care demands as patient
loads changed.
“You have to be quick and piece it together,”
said Rooney.
But chemotherapy made it difficult for her to
return to work. When her leave ended, Rooney wanted to ease back into the job a
few days a pay period, but her employer said she would have to work 32 hours a
week.
Rooney, 61, had taken a computer-based
assessment before and after cancer treatment, and she knew her thinking
abilities had changed, making it difficult to perform her job duties. “There
was a remarkable difference between what I could handle in putting test pieces
together on the computer,” she said. “I started crying because I couldn’t do
it.”
Rooney did not go back to work and lost her job.
“It was devastating because I loved my job,” she said.
In a tight labour market, many employers have an
incentive to keep employees on the job, especially because recruiting and
training replacements is so costly, said Deb Krause, a vice president with the
Minnesota Health Action Group, an organisation of employers that educates and
advocates on health care issues.
“The reality today is more people live with
cancer than die from cancer,” said Krause. “It does make sense for them to
invest in their employees and to help them get back to work and to be healthy.”
More employers are investing in cancer detection
and prevention efforts, for example, or helping workers get second opinions or
treatment at centres of excellence. Some give time off to caregivers and offer
voluntary critical-illness benefits that help pay bills, Krause said.
Disability discrimination?
Many cancer patients who need extended leaves
turn to the Americans with Disabilities Act (ADA), which bars employers from
discriminating against people with disabilities, including cancer.
But the ADA, as traditionally interpreted, does
not guarantee extended medical leaves: Employers can deny an employee request
that creates an “undue hardship” on business operations.
Employees can challenge denials in court, but
that usually requires hiring an attorney at a time when the patient’s financial
resources are already drained.
In addition, a federal appeals court for the
Seventh Circuit recently ruled that the law does not support multi-month
leaves. Although the ruling applies only in states in that circuit, which
includes Wisconsin, Illinois and Indiana, attorneys fear it could peel back
protections nationwide.
“I am sure that employers in other circuits will
be citing this case to the courts … even though they are not bound to it,” said
Hodges. “Will courts in other circuits follow it is really the question.”
One local resource, Cancer Legal Care, provides
free legal advice to patients who need help with employment issues, wills,
guardianships and other matters that face cancer patients and their families.
“People don’t want to go onto disability. They
want to keep working if it is at all possible,” said Lindy Yokanovich, founder
and executive director of the organisation, said “They are terrified of losing
their jobs because with that is losing their health insurance.”
Yokanovich said workers seeking extended leaves
under the ADA should offer their employers as many “reasonable accommodations”
as possible, such as part-time work, a job switch or telecommuting to minimise
any undue hardship for the employer.
“It is going to be harder for that to look like
it is a burden for the employer … when the employee proposes several
work-arounds,” she said.
Frank says she opted not to take her employer to
court under the ADA. “People shouldn’t have to be faced with how do I find a
lawyer, how do I fight this,” she said. “We are putting all this extra stress
on the cancer patient.”
Eventually she applied for Medical Assistance to
pay for her treatment and recovery. She also qualified for Social Security
Disability.
Today she is “thrilled” to be cancer-free. She
works as an independent contractor on a limited basis.
“It feels great. It is wonderful to use my brain
again and to get out and feel like I am contributing.” – Star Tribune
(Minneapolis)/Tribune News Service
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