Be the Boss Over Cancer

I was diagnosed with breast cancer in 2011.  I have an injection once a month and this has left me fatigued.  I had a week and a half off for surgery and I worked through the radiation treatment except for coming in a little late and also one day a month because of fatigue. I have asked to work 32 hours instead of 36 and my employer has approved this time until January 2013.  The HR department has informed me that this is counted towards my 12 weeks of FMLA time.  I have to have the shot for another four years so if this is counted towards my FMLA I would be using over half of it.  The HR department is counting my hours based on 32 hours a week.  Is this correct or is the FMLA 12 weeks a year regardless of the hours that you work?  Do I also have protection under the ADA?

Thank you

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  • Eva LaManna

    Eva LaManna on Oct 20, 2012

    Cancer Rights Attorney Comment:

    Hi Jolene, 

    These are important questions you have asked about how to qualify and take time off for medical reasons.  The FMLA and ADA both may allow an eligible employee to take medical leave in certain situations.

    Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to 12 weeks of leave time within 12 months, which can be taken all at once or in  smaller segments, such as a shorter workweek.   In order to be eligible for FMLA leave, an employee must work for a state or local government or private employer with 50 or more employees, who work within a 75-mile radius of the employee’s worksite.  An employee must also have worked for the employer for a total of 12 months and worked at least 1250 hours during those 12 months.  Based on your post, it sounds like your employer is most likely considering your leave request to be FMLA leave as a reduced schedule. 

    When an employee requests a shorter workweek schedule, the amount of leave actually taken is counted toward the FMLA’s 12-week maximum, every 12 months.  This leave is calculated based on the length of the actual hours you were working every week when you made the request, which you say is 36. So if you are taking 4 hours off a week, reducing your schedule from 36 hours to 32, you are using 4/36, or 1/9 of an FMLA workweek.  However, also keep in mind that some states have medical leave laws that may offer even more time off than the FMLA.  To find out if your state offers more time or possibly even paid medical leave, contact your state's Department of Labor.  Additionally, there are several different ways in which employers can calculate this 12 month period, so you should also check with your human resources (HR) department to see what your employer’s policy might be.   

    The Americans with Disabilities Act (ADA) may be able to offer you additional medical leave beyond the 12 weeks provided by the FMLA.  Under the ADA, employers are required to provide reasonable accommodations to qualified employees with a disability, as long as the accommodation requested won’t cause the employer an undue hardship.  Cancer can be considered a disability under the ADA, although it is determined on a case-by-case basis.  Reasonable accommodations under the ADA are changes in your workplace that will help you to continue to perform your job.  For example, telecommuting or reduced work hours might qualify as an accommodation depending on your workplace and job responsibilities.  For more information about the ADA, visit www.eeoc.gov, and for more info on reasonable accommodations, check out www.askJAN.org.  

    Thanks so much, and please feel free to reach back if you have any further questions. 

    Eva LaManna, Esq.
    Manager of Programs

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