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Worked for this company for 6 years; was diagnosis with lung cancer (not a smoker). Employer threatened several times while out on disability that I was causing hardship to the company. Under doctors advised not to return to work, I did to save my job and benefits (I thought), however, I could not work under the same conditions and returned to disability. One week later I was terminated and cut off from medical benefits. Is this legal? Can you be terminated for medical disability? The human resource department obtained medical information from my physician which they were not required to do. Isn't this against the HIPPA law?

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  • Sarah Goodell

    Sarah Goodell on Apr 16, 2014

    Cancer and Careers Staff Comment:

    Hi Michelle,

    Thanks for writing to us! I have sent your question to one of our legal experts who will be in touch soon.

    In the meantime, as I mentioned yesterday, I would recommend reaching out to the National Cancer Legal Services Network: http://www.nclsn.org/

    Best,

    Sarah, Cancer and Careers Associate Manager of Programs

  • Susan S.

    Susan S. on Apr 16, 2014

    I went through the same thing;
    I was living in the State of Alabama. I got fired after cancer diagnosed;
    I was a property manager of an Apartment Complex!
    I had worked there over 3 years and a single mom, 37 yrs old young. I went to my District Manager at the Corporate Office in advance to come up with a plan thinking I would get medical leave of absence. Not! I just knew my job was secure I took it from 65% occupied to 99% occupied, that is only 2 vacants and they were both pre-leased, I took the rent delinquency (past due rent) from only 62% collected to 96% rent collected; my property could run itself! Friends assured me that my employer could not fire me that I could sue them! Huh! One day I get a call to come to my bosses office he tells me I am just not working out no more and fired me!!! I asked for some sort of severance paper aka termination paper which is legally required in Georgia (it states why they fired you) he refused saying in Alabama he didn't have to give me the paper. I knew he was up to no good! I filed unemployment that day after i went to my office and gathered all my paper work/work emails regarding my great performance then for government benefits! I got denied unemployment because he said I had poor performance (thank God I gathered my written proof from my boss what a good job I was doing and all my reports) the State of Alabama reversed their decision and I got a check for at least 6 months but then with unemployment the employer can appeal the States decision which stops the check! And yep you guessed it my boss appealed it to stop my checks so no money again! I at that point called for a conference and they sided with the employer and demanded I pay them the monies from unemployment back that the State awarded me (due to all my written proof the employer was a liar) I can't prove it but I bet you the employer paid the State off to make that decision, why else? I had it in writing that I did my job and had excellent performance! all this happened in 2009, the worst part of the economy, so it took me over 6 months to get an employment check to begin with. Originally the DCF lost my food stamp application; took 2 months to get food help (again I was single mom) oh also an apartment came with my job and they illegally evicted me (didn't even file a dispo with the court) broke in my window unlocked the door and put everything I owned on the curb while I was at the docs and kids in school....Employers do what they want to do unless they are an exception with good people in charge with a heart! Alot depends on the state you live in... Many states are "work at will" and if you are in a "work at will" state they can fire you just because they wish (Alabama and many states are)! I should have tried to sue them at least for the illegal  eviction but I was way to sick by this time!!!!! But God is good; I ended up getting approved for disability and God knows I would need it because I am almost 4 years out and have multiple severe problems from the treatment I received.. I wish you and everyone going through this the best!

  • Monica Bryant

    Monica Bryant on Apr 29, 2014

    Cancer and Careers Staff Comment:

    Hi Michelle,

    My apologies for the delay in responding and I'm sorry to
    hear about your situation.  The Family
    and Medical Leave Act (FMLA) is the federal law that entitles some employees 12
    weeks of unpaid, but job and health insurance protected leave, per year, in
    order to care for their own serious medical condition, or to act as a caregiver
    for a seriously ill child, parent, or spouse. 
    To be eligible for FMLA, an employee must work for an employer with 50
    or more employees, within a 75 mile radius of the employee’s worksite.  The employee must also work for a total of 12
    months for the same employer, and in that 12 months, work at least 1,250 hours.
     Employers are not permitted to fire you
    if you are out on FMLA leave, unless they can show that they would have fired
    you even if you were not out on leave (e.g., they discovered misconduct).  For more information on the FMLA, visit: http://www.dol.gov/whd/fmla/fmla-faqs.htm.

    The Americans with Disabilities Act (ADA) is the federal law
    that protects eligible employees from being discriminated against based on a
    disability.  To be eligible for the ADA
    you have to be able to perform the essential functions of the job, with or
    without reasonable accommodations, work for an employer with 15 or more
    employees, and have a disability.  If you
    are unable to work at all for an extended period of time, it’s likely that you are
    unable to perform the essential functions of the job.  Therefore, you would not be eligible for the
    ADA’s protections and companies would not be required to hold your job for
    you.  For more information about the ADA,
    visit: http://www.dol.gov/dol/topic/disability/ada.htm.

    It is permissible in certain instances for your employer to
    obtain some of your medical information; generally this is referred to as
    medical certification.  Medical
    certification is often required when an employee is seeking to take time off
    from work under the FMLA or to access reasonable accommodations under the ADA.  An employer may also have access to your
    health insurance information if they are a self-funded health insurance
    plan.  A self-funded health insurance
    plan is one where the employer pays directly for an employees’ health care,
    rather than purchasing insurance from a health insurance company.  However, in any of these circumstances any
    medical information obtained by your employer must be kept confidential and in
    a separate file from you normal employee file. 
    For more information about medical certification, visit: http://webapps.dol.gov/elaws/whd/fmla/12a1.aspx.

    I hope that helps answer your questions.

    Best,

    Monica
    Bryant, Esq.

    Cancer
    Rights Attorney

    COO, Triage
    Cancer

    Please note that the
    above information is designed to provide general information on the topics presented.
    It is provided with the understanding that the expert is not engaged in
    rendering any legal or professional services in the information provided above.
    The information provided should not be used as a substitute for professional
    services.

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