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Can I be Fired if My Child Has Cancer?

December 28th, 2020

Pennsylvania is an at-will employment state, meaning that an employer is not required to show good cause for firing an employee. An employee may quit without justification and may likewise be fired at any time for almost any reason. However, there are some exceptions to this rule, one of which is discrimination.

Under both federal and state law, employees may not be fired or otherwise treated differently for belonging to a certain race, national origin, religion, gender or sex, or for having a disability. These protections extend not only to employees who themselves have cancer, but also to those who must take time off from work because their children have cancer. It is important for employees to understand their rights regarding employment discrimination, and the legal recourse available to them when those rights are violated.

What is the Americans with Disabilities Act?

The Americans with Disabilities Act (ADA) is a federal law that applies to U.S. employers with 15 or more employees; this includes state and local governments, employment agencies, and labor organizations. Under the ADA, employers may not discriminate against qualified individuals with disabilities in any part of the employment process, including the job application process, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment.

A qualified applicant is defined by the Equal Employment Opportunity Commission (EEOC) as one who, with or without reasonable accommodation, can perform the essential functions of the job. What constitutes a reasonable accommodation depends on the circumstances of the case and may include the following:

  • Redesigning work facilities so that they are readily accessible to an employee in a wheelchair.
  • Allowing a diabetic employee to take regularly scheduled breaks to eat and monitor their blood sugar and insulin levels.
  • Having someone read information to a blind employee, or a sign language interpreter for a deaf employee.
  • Granting leave to an employee with cancer for radiation or chemotherapy treatments.

However, there are limits to employers’ duties when it comes to reasonable accommodations; employers generally only have to provide a reasonable accommodation if an employee has requested one. They are also not required to provide a reasonable accommodation that imposes an undue hardship. An undue hardship is regarded as one that comes with significant difficulty or expense in light of an employer’s size, financial resources, and nature of operation.

Does the ADA Address Cancer?

The ADA does not list conditions that are considered disabilities; rather, it provides a definition. According to the definition, cancer may be considered a disability if:

  • It substantially limits one or more of the employee’s major life activities, such as personal care, manual tasks, eating, sleeping, concentrating, thinking, or working.
  • It limits one or more of an employee’s major bodily functions, such as normal cell growth or operation of the immune system.
  • There is a record of the employee having had cancer in the past.
  • An employer thinks that the employee has cancer, even if they do not.

Under the ADA, an employee may not be discriminated against for their relationship or association with a person who has a disability. Therefore, an employer may not discriminate against an employee who has a spouse or child that has cancer. While employers may fire employees for legitimate business reasons, such as downsizing, insubordination, or poor performance, disabled workers may not be fired because of their disabilities or because of their relationships with disabled people.

What is the Pennsylvania Human Relations Act?

The state anti-discrimination law, the Pennsylvania Human Relations Act (PHRA), applies to Pennsylvania employers with four or more employees. It mirrors the federal ADA in its prohibition of employment discrimination based on protected characteristics, such as disabilities. Employers may not make employment decisions, such as hiring, firing, and pay, based on factors other than qualifications or job performance. The PHRA also requires employers to provide reasonable accommodations to those with disabilities as long as they do not impose undue hardships.

An employer may also not retaliate against an employee who exercises their rights under the ADA or the PHRA. This includes requesting a reasonable accommodation or filing a complaint about discrimination in the workplace. While Pennsylvania does not have a specific law pertaining to leaves of absence for medical or family reasons, employees are protected by the federal Family and Medical Leave Act (FMLA).

Who is Covered by the FMLA?

The purpose of the FMLA is to promote work-life balance and give employees the ability to balance the demands of work and family. FMLA requires private employers with 50 or more employees to provide workers with up to 12 work-weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons, including:

  • The birth of a child or placement of a child for adoption or in foster care, and to bond with a newborn.
  • To care for a spouse, son, daughter, or parent with a serious health condition.
  • A serious health condition that renders the employee incapable of performing the essential functions of their job.
  • Any other qualifying exigency arising out of a close family member’s active duty in the military.

Employees are not only entitled to take such leave but are also entitled to be restored to the same job they had prior to taking leave, along with any health benefits. However, to qualify for FMLA protection, an employee must:

  • Have worked for an employer for 12 months.
  • Have worked at least 1,250 hours in the 12 months prior to taking leave.
  • Work at a location where there are at least 50 employees within 75 miles of the worksite.

How Does the FMLA Protect Parents of Children with Cancer?

Under the FMLA, employees are entitled to take leave for several reasons, including serious health conditions. An employee does not need to be sick in order to take leave; their spouse’s, child’s, or parent’s serious health condition may also qualify. The Department of Labor (DOT) provides guidance on the most common health conditions that qualify for FMLA leave:

  • Conditions requiring an overnight hospital stay.
  • Conditions that incapacitate the employee and the family member for more than three consecutive days and that require ongoing medical treatment.
  • Chronic, incapacitating conditions that necessitate treatment by a health care provider at least twice a year.
  • Pregnancy.

Therefore, an employee who is covered by the FMLA is entitled to take up to 12 weeks of leave per year to care for their child who has cancer. A covered employee is also entitled to:

  • Have their job waiting for them when they return from leave.
  • Continued health insurance.
  • Take the leave either in one block of time or in several, smaller blocks.
  • Use sick, vacation, or personal time in conjunction with FMLA leave, so they may continue to get paid.
  • Not have their decision to take time off under the FMLA held against them in employment actions, such as hiring and firing, promotions, or discipline.

However, an employee must follow a certain procedure to remain eligible for FMLA leave. They must give their employer notice of their intention to take FMLA leave at least 30 days in advance or as soon as the employee realizes they need time off. An employee is not required to mention the FMLA in their initial request, but once they need additional time off, they must mention their specific condition or their need for FMLA leave.

Employers are prohibited from interfering with the exercise of employee rights under the FMLA. They may not deny employees’ rights under the FMLA, retaliate against them for engaging in legally protected activities under the FMLA, or retaliate against them for filing complaints.

What Should I Do if My Rights Have Been Violated?

An employee who feels that their rights have been violated under the ADA, PHRA, or the FMLA may file a complaint with the EEOC, the Pennsylvania Human Relations Commission, or the Wage and Hour Division under the DOT. The types of remedies available depends largely on the circumstances of the case, but may include compensation for lost wages, out-of-pocket costs, reinstatement to the employee’s former position, and civil penalties against the employer.

Philadelphia Employment Discrimination Lawyers at The Gold Law Firm P.C. Advocate for Workers Who Have Sick or Disabled Children

If your employer fired you or otherwise took adverse employment action against you because you took time off to care for your child, we can help. Our Philadelphia employment discrimination lawyers at The Gold Law Firm P.C. fight for the rights of workers. Call us at 215-569-1999 or contact us online for a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we proudly serve clients throughout South Jersey and southeastern Pennsylvania, including Wilkes-Barre, Scranton, northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County.

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