Can you be fired because you have cancer?

[ClarabelleCowFan]

I have a friend battling breast cancer for the 2nd time in 2 years. She works for a major retail company on the corporate side (middle management) and has for several years. She is a very hard working employee who goes above and beyond to get things done no matter how many hours she has to work.

The past month has been especially rough for her healthwise because she contracted an infectious blood disease through her port. She had to spend the entire week of Thanksgiving in the hospital because she had contracted sepsis (most likely through her port). Since she was in the hospital, she missed that entire week of work which is the busiest week of the year (Black Friday weekend).

Her boss has reprimanded her for her attendance even though he knows full well of the struggle she is having to endure. He is now threatening to fire her unless she goes out on an extended medical leave or takes a demotion within the company.

So my question is, can she be fired for being sick? Is she protected by any legal means?

She has consulted an attorney who told her to come back when they fire her. She obviously doesn't want to lose her job (and her health insurance) but she doesn't know if she has any rights at all in this situation.

Thanks for any resources or information that I can pass on to her!

 

[laurie31]

Her illness should qualify for protection under FMLA. You get 12 weeks a year and it does NOT have to be consecutive days. You can take a day here, a week there, and they can't touch you. Unless you exceed the 12 weeks (or unless you work for a company too small to have to allow FMLA, but it doesn't sound like that is the case here).

She needs to contact her HR department, and if she hasn't filed FMLA paerwork, she needs to do that ASAP.

That's terrible that she has to endure job stress on top of fighting cancer. I pray everything will work out for her.

 

[deegack]

Her illness should qualify for protection under FMLA. You get 12 weeks a year and it does NOT have to be consecutive days. You can take a day here, a week there, and they can't touch you. Unless you exceed the 12 weeks (or unless you work for a company too small to have to allow FMLA, but it doesn't sound like that is the case here).

She needs to contact her HR department, and if she hasn't filed FMLA paerwork, she needs to do that ASAP.

That's terrible that she has to endure job stress on top of fighting cancer. I pray everything will work out for her.

This is probably what the boss was offering when he said extended medical leave. However, FMLA is unpaid leave and usually you have to pay for your insurance out of pocket.

The long and short of it is, she can be fired for not performing her job regardless of her illness. It sucks but that is the way it works.
Good luck to her.

 

[Andtototoo]

The long and short of it is, she can be fired for not performing her job regardless of her illness. It sucks but that is the way it works.
Good luck to her.

Yes, that is what happened to an acquaintance. She'd worked here for about 15 years. Her idiot boss fired her when she was in the hospital in ICU with pneumonia. She was out for three days and her boss decided she could not have someone out that long and fired her -- by leaving a message on her home phone.

Stupid boss then spent 2 months searching for a replacement and another 6 months getting them up to speed. All because she couldn't wait for her employee to get out of the hospital.

Best part? She worked for a Christian organization.

So yes, you can be fired for being sick.

 

[Swan4Me]

If you work in a "at will" state, you can be fired for no reason at all.

 

[Keli]

At the company I work for and also the one my dh works for I know that we have to have used up all our sick time and vacation time while on FMLA before we move to unpaid leave.
Also, since the days taken do not have to be consecutive, neither of us would lose our health insurance as long as we work a minimum number of days per quarter. Definitely it is something your friend should look into, IMHO.

 

[dakcp2001]

I had a patient on my floor that was extremely sick - pain, discomfort, and several surgeries. The poor guy was holding conference calls in his hospital room and working harder than most people do at work.He owuld refuse pain med when he CLEARLY needed it saying he had too much work to do and he did not want to get in trouble. He was fired about 2 weeks after being hospitalized.

I don't know if it is legal or not, but I can say one thing for certain. There is a special place in you know where for people who do this to someone. It is like kicking them when they are down. I think you would have to have no soul to fire someone that is fighting cancer. Bad bad karma that I hope bites them in the rear end.

 

[snarlingcoyote]

Her illness should qualify for protection under FMLA. You get 12 weeks a year and it does NOT have to be consecutive days. You can take a day here, a week there, and they can't touch you. Unless you exceed the 12 weeks (or unless you work for a company too small to have to allow FMLA, but it doesn't sound like that is the case here).

She needs to contact her HR department, and if she hasn't filed FMLA paerwork, she needs to do that ASAP.

That's terrible that she has to endure job stress on top of fighting cancer. I pray everything will work out for her.

Laurie said it all! I have trigeminal neuralgia that I control through diet and copious amounts of ibuprofen and naproxen sodium, but one of the first things I was told was that if I ever develop too many triggers and think I will need to start taking days off work for it, I need to get myself down to the HR department even before I've used a few days of sick time and fill out an FMLA form!

People use the FMLA all the time for all sorts of reasons; it's not uncommon.

 

[dngnb8]

She was not fired for having cancer. She was fired because she cannot do her job any longer. FMLA protects the job for 12 weeks. After that, if the employee cannot return, the employer has the right to fill the position.

It is unfair to expect an employer to leave a position open.

And before someone calls me heartless, I am a cancer survivor.

 

[PeterPan09]

If you work in a "at will" state, you can be fired for no reason at all.

Yep, pretty much. Sure, they might word it more carefully, but an employer can let you go if they don't like the socks you wear. Firing someone with a serious illness is common, as is firing people who are getting older and "might" cost more in health care, people who are overweight, smokers...etc. Sure, they don't often say that those are the reasons, HR people are really good at coming up with better phrases than that.

Is this right? NO, it's not. I don't know how someone who fires a good worker because they have cancer can look themselves in the mirror-but it's not about humanity, it's about PROFIT and nothing in this country is more important than how much money you can make.

 

[eliza61]

She was not fired for having cancer. She was fired because she cannot do her job any longer. FMLA protects the job for 12 weeks. After that, if the employee cannot return, the employer has the right to fill the position.

It is unfair to expect an employer to leave a position open.

And before someone calls me heartless, I am a cancer survivor.

You're not heartless at all, I just wish we had a bit more compassion. Or maybe compassion is not the right word, maybe understanding is better.

I work for a fortune 50 chemical company that is always getting an award for being family friendly so I know it can be done.

Even though it's a major international company, each division has autonomy to manage itself.

Our belief is that a good employee is extremely hard to find so when we have one we will do every thing to keep them. It takes money and time to continually fill positions when a little preventative work can avoid losing good employees.

We have a gentlemen "steve" who has health problems. He's on dialysis and fighting prostrate cancer. We work with Steve so he can schedule his chemo and dialysis to maximize productivity.

We do have FMLA but as other said its unpaid. How horrible to have to battle a disease and then stress over whether you are destroying our family's finances.

 

[kamik86]

I can see both sides of this issue.

At my job we have many people that do the same things, and someone could cover for you for a week or so but after that both projects (yours and the one the person should really be working) are going to suffer for it. This project is short on funding and we just couldn't have you out that long. Now if you took an extended leave we could train a replacement. But a day here a day there and never knowing if you will be in just wouldn't be possible. As much as the person's job shouldn't suffer becasue they are sick if the company can't meet the expectations of the project we will lose the contract and all our jobs will be on the line.

 

[dngnb8]

I work for a fortune 50 chemical company that is always getting an award for being family friendly so I know it can be done.

Not all employers have the fiscal resources or the employment force to overcome the loss of an FTE

 

[PeterPan09]

She was not fired for having cancer. She was fired because she cannot do her job any longer. FMLA protects the job for 12 weeks. After that, if the employee cannot return, the employer has the right to fill the position.

It is unfair to expect an employer to leave a position open.

And before someone calls me heartless, I am a cancer survivor.

I don't know that it's really heartless, it's just different priorities. There's certainly nothing illegal about it. There was a time not that many years ago when a company would more often that not do what Eliza's company is doing with their employee who has a serious illness. They would view the person as having value even on a limited basis and would work with them to keep them employed. Now, that kind of thing is the exception, where the rule is "get rid of anyone that costs too much and cuts into our profit". Maybe it's the fact that often the people who make the decisions are so far removed from the employee that they don't see them as a person, don't really know the intangible value they might have to the company. They're not really heartless because the person isn't real to them, they don't know them. It's all about numbers on a page, not real people.

It's clearly why I could never be in a position where I had to make those decisions, because I would always do whatever I could to keep that person working-and I'd probably cost the company money.

 

[Tomader]

This does not even compare but I lost my job when I had back surgery. I used my 12 weeks and the Dr. would not release me so my position was posted and filled. By law they can let you go. I pray for your friend also and hope for a full recovery for her.

 

[mickeyboat]

Laurie said it all! I have trigeminal neuralgia that I control through diet and copious amounts of ibuprofen and naproxen sodium, but one of the first things I was told was that if I ever develop too many triggers and think I will need to start taking days off work for it, I need to get myself down to the HR department even before I've used a few days of sick time and fill out an FMLA form!

People use the FMLA all the time for all sorts of reasons; it's not uncommon.

You poor thing. I hope you are able to continue to manage your pain.

 

[apirateslifeforme]

I became ill after only 1 month at my last job. While I was able to do the actual computer work with no issue, I had difficulty going back and forth from my office in the back of the building to the shipping office up front (quite often!) because my iron level had dropped to just under transfusion threshold. I was very weak, cold, and always out of breath. Yet I was consistently told that I was doing an excellent job and that I'd caught on quickly, even up to my 90th day of employment. On my 91st day, I was blindsided by my boss telling me that it was my last day because "It seems that you are having some issues and we don't see you being able to keep up." So in my case, yes, they let me go due to illness and even admitted it.

 

[Lisa loves Pooh]

I'm sorry for your friend.

I did a quick google this morning as I was curious and it does seem that there was a case regarding cancer being covered under ADA. For the purposes of your inquiry, it was not.

Then AIDS (or HIV?) was declared a disability under ADA, so perhaps case law will later find that cancer IS considered a disability.

If your friend is struggling to actually perform her job, is she really entitled to "keep" it while she is unwell? I'm not so sure.

Not the same, but pregnancy, like your friend's cancer, is not considered a disability. There is case law out there that if the pregnant woman is treated the same way as a male employee who was on limited duty due for medical reasons, then her pregnancy alone was not enough to give her special consideration since it isn't a disability. I mention male employee, as this particular case involved an airline employee who was obligated to lift 50 pounds. Due to pregnancy, she couldn't and I forget what happened except that she fell under corporate policy and it was totally legal. There was a male employee treated the same way as he had an injury.

While compassion is a great thing--it doesn't change that an employer needs employees who can do their job. I understand your friend's plight. I'm just not positive it warrants (at least from a legal perspective) any more special consideration than other employees with other equally debilitating medical issues.

On that note--my husband's former employer was amazing. When a family has a catastrophic issue, they will allow other employees to donate vacation time and the company "holds" a position for the employee until they are able to return. I know of 3 separate employees that this happened to. Two were due to a horrifying death in their immediate family and the care of other family members who were injured at the same time. The other was due to a spouse having a catastrophic injury. All have taken extended time off but eventually returned to work. The vacation time donated allowed for that time off to be paid.

For me--I had returned early to work and then had to leave for medical reasons. My job was "held" for several months and then a position was "held" up until 12 months.

While this was all nice--none of it was legally required.

I would suggest that your friend get all of her ducks in a row for FMLA and if she is unable to perform her job duties, I hope that she is able to find a solution that works for all involved.

I pray that she gets better.

 

[ClarabelleCowFan]

Thank you all very much for your input and information.

I can see both sides of it as well - from an employer's perspective and from my friend's. I have told her to talk to HR immediately about the FMLA so I hope that she does. The company is all about the bottom line which is no surprise.

Her stress level is through the roof right now which can't be helping her battle with cancer. I just hate to see her being kicked while she is down.

 

[FireDancer]

I think how much an employer is willing to work with you depends at least partially at how much they value you as an employee. If you are a person who is very good at their job, hard to replace, and has a long history at your company you might notice something different than an employee that has been written up numerous times, doesn't get along with anyone at work, or is easy to replace.

I see both sides of this issue also. On one hand I do think it is terrible to lose your job because you get sick. It is something that can happen to anyone through no fault of their own. On the other hand a company exists to make a profit and if they are hamstrung because an illness is preventing someone from doing their job either completely or adequately they have to do something.

It is kind of a no win situation but I hope your friend recovers quickly OP. I hate cancer.