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I am currently on short term disability for chemotherapy due to cancer. My FMLA just ran out with my company. What can I do ?

Boston, MA |

I received a call today from an HR manager letting me know the FMLA ran out and that she is going to call my supervisor and his boss to post my position. "Great... Huh..." what can I do legally to ensure a position with my company? and or can I sue them for basically letting me go while dealing with cancer? I am still under the short term disability and moving into the long term. I have been keeping up talking to my supervisor and he can't wait for me to come back. It is hard enough going through cancer and chemo now not having a job just puts the weight of the world on my shoulders. What can I do?

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Attorney answers 3

Posted

What's the soonest you might be able to return?

This is not formal legal advice.

Asker

Posted

I can return after my chemo is done and I am cleared health wise. Which would be by early to mid April.

Leizer Z Goldsmith

Leizer Z Goldsmith

Posted

Unpaid leave may be a reasonable accommodation that you could be entitled to under the Americans With Disabilities Act, Rehabilitation Act or Massachusetts law . Whether or not you can receive this accommodation depends upon the facts of your particular circumstances. In particular, the question of whether permitting unpaid leave for another month or month and a half would impose an undue burden on the employer. Contact counsel for help on this, please. It's complicated, but not hopeless.

Posted

The employee does not have to keep your job for an extended period of time. They've given you the 12 weeks FMLA and you've exhausted them. But you have another option. If at all possible, can you tell them you are ready to return to work with some accommodations? For example, can you work from home, or a flex schedule, etc? By law, employers must engage in an interactive dialogue with a disabled employee who asks for a reasonable accommodation. But you have to first ask in order to get the process going. I am including a link to my website re this issue. Time is of the essence. Get the process going asap. You may be able to return to work on a reasonable accommodation while you finish your treatments. Good luck!

http://pamsmithlaw.com/2013/02/11/i-want-to-ask-my-employer-for-an-accommodation-of-my-disability-what-should-i-do/

This information should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Asker

Posted

My oncologist has said she does not want me working through the chemotherapy process. Because of the type of chemo it is. I have a very physical job and work around people who may be sick all the time. I cannot work from home. I do have problems with the nerves in my hands and feet due to the type of chemo I am currently receiving. I would love to return to work I am just trying to follow what my doctor says. Would nerve damage to these extremities give me any disability?

Pamela Anne Smith

Pamela Anne Smith

Posted

I think you may be mixing apples and oranges here as the saying goes. One issue is short term disability. Whether something is a disability for the purposes of STD is decided by the insurer for your company. I refer you to attorney Palamara's reply which addresses that category. The separate issue is disability discrimination which is what I addressed. I don't know what kind of work you do and whether there is an accommodation that would work. That is why my blog suggested you look at the link for askjan.org. accommodation, and the employer won't agree, then you might be a

Pamela Anne Smith

Pamela Anne Smith

Posted

Sorry for the typo at the end of the last sentence. It should read, if you can find a reasonable accommodation and the employer won't agree, that could be disability discrimination.

Posted

Typically, Short Term disability benefits are paid for a term of 6 months. After short term disability benefit, many employers provide their employees with Long Term Disability Coverage through a Long Term Disability Insurance Policy. If your employer provided such a policy you will want to make a claim prior to the exhaustion of your short term disability so that there is no gap in time where you do not have income coming. If you are unsure whether you are covered under a Long Term Disability Policy, call Human Resources at your former employer and find out. Also, ask for application paperwork if you are so that you can get the ball rolling immediately.
Should you not be covered by a LTD Policy, the other alternative is to file a Claim for Social Security Disability Benefits. You may want to start this process as quickly as possible because the government works very slow sometimes (as you could guess).

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