TAKING A MEDICAL LEAVE OF ABSENCE

When you need time off for cancer treatment, first get the facts. The Family and Medical Leave Act of 1993 may be an option when you need to take a medical leave.

Even with briefer hospital stays, drugs to minimize the side effects of chemotherapy and other advances in cancer care, it's often necessary to take a medical leave from your job to obtain treatment or to recuperate. Here's what you need to know about federal and state protections and how to negotiate the best possible deal for you and your employer.

Know the Law

Family and Medical Leave Act of 1993 (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) requires certain employers to grant family and medical leave when needed -- such as after the birth or adoption of a child or when an employee or a close family member has a serious medical problem. Signed into law by then-President Bill Clinton, the medical leave act is designed to help you balance the demands of the workplace with your own health needs and those of your family. In most cases, the act also requires employers to restore your job -- or an equivalent one -- upon your return to work.

The full text of the Family and Medical Leave Act of 1993 can be found at the U.S. Department of Labor Web site. But it takes time and patience to wade through the entire law. If you're short on both right now, here are some key points to keep in mind:

• Not all employers are bound by the FMLA, and not all employees are covered by it. The law applies to all public agencies and local schools, as well as to private employers who employ 50 or more workers for at least 20 workweeks during the calendar year. Employers who have fewer than 50 employees are not required to provide family and medical leave under FMLA. To be an eligible employee, you must have worked for the employer for at least 12 months and logged at least 1,250 hours during the previous 12 months.
• Workers who qualify are entitled to a total of 12 workweeks of leave during a 12-month period. Health insurance coverage continues as if you were still working. That means, of course, that if you made some of the premium payments while you were working, you will be required to continue doing so while on leave.
• When you return from leave, you must be given back your original job or one that is equivalent in pay, benefits and other conditions. (Exceptions are sometimes permitted if the result would cause serious economic injury to an employer's operations.)
• Now for the bad news: The family and medical leave, if you qualify, is unpaid, unless your employer or state plan is more generous than the federal law requires. (See "How to Negotiate with a Small Employer" and "Check Out Your State Laws," below. And your boss may ask you to first use up vacation, sick and personal time before going on FMLA leave.

Attempt to understand the Family and Medical Leave Act of 1993 so it can help you when you need it most.

Do Your Part

You can ease the process of getting medical leave by following a few simple steps:

• If possible, provide your employer with advance notice of your need for medical leave. A 30-day advance notice may be required if the need is foreseeable. If it is not, a verbal notice given within one or two business days after learning you need to take medical leave is recommended under FMLA.
• Document your need. Give your employer a letter, stating the date on which the serious medical problem began or was diagnosed, along with the probable length of time needed for medical leave.

Put the FMLA to Work for You

Under FMLA, two provisions are often overlooked, according to Maria Greco Danaher, a Pittsburgh attorney who specializes in employment and labor law and has written on the topic:

• The leave can be intermittent. This might be useful, especially for cancer patients, who may just need a few days to recover from each chemotherapy session, not weeks.
• You can request a reduced schedule, such as a shorter workweek.

In these cases, your employer may transfer you to a different job with equal pay and benefits if it is better suited for repeat leaves than your regular job.

Know What's Legal, What's Not

Giving your employer notice and documentation of the need for medical leave gets the ball rolling, but it may not be the end of the story. Here's what your employer can rightfully request under the FMLA law:

• Your employer can ask that you obtain a second opinion on whether the leave is necessary (but your company must pay for it and can't hire a health care provider who works for the company). If the second opinion differs form the first, you are allowed to get a third opinion (again, at your employer's expense). The third opinion is considered binding and final.
• From time to time, you can be asked to provide a status report about your medical condition and treatment.

For more details, refer to the FMLA compliance guide, posted on the U.S. Department of Labor Web site (http://www.dol.gov/esa/regs/compliance/whd/1421.htm).

How to Negotiate With a Small Employer

If FMLA does not apply to your employer, you can still try to negotiate a medical leave. Here are some suggestions from Steve Friedman, a six-year survivor of testicular cancer who works for the National Coalition for Cancer Survivorship:

• Schedule a time to sit and talk. Try to arrive at an understanding of when you can work and emphasize your ability to keep contributing to the company.
• Get the plan in writing to serve as a contract.
• Stay positive. Some smaller employers have a reputation for being very understanding about the need for family and medical leave even though they are not covered by FMLA.

Check Out Your State Laws

In addition to the federal law regulating medical leave, your state may have its own provisions. Five states have programs in which workers are paid from a temporary disability insurance program for medical leave, according to Lissa Bell of the National Partnership for Women & Families, an advocacy group. And 23 states have introduced family leave benefits legislation which would provide paid medical leave and other benefits.

To find out what's happening in your state, you can contact your state's Department of Labor. Or, check the "State Round-Up" section posted at the National Partnership's Web site (http://www.nationalpartnership.org). Click on "Campaign for Family Leave Benefits," then scroll down to the round-up article.

If both FMLA and state medical leave laws apply to your situation, you are entitled to collect the most generous benefits under either law.

Be Aware of Other Protections

If your company is not covered by FMLA or any state law, there are other possibilities to get the leave you need:

• Check your employment contract, employment policy manual or union benefits programs.
• You may be provided some protection under the Americans with Disabilities Act if the medical condition evolves into a disability. The entire text is posted at the U.S. Department of Justice ADA home page (http://www.usdoj.gov/crt/ada/adahom1.htm). Workers covered under the ADA can argue for medical leave as a reasonable accommodation.

How to Fight Back

What are your options if you explore all the possibilities and still feel you are not getting what you are entitled to? Among the measures suggested by the National Coalition for Cancer Survivorship:

• Talk first. Try to open a professional dialogue with your employer in which you let him or her know you are aware of your rights and want to resolve the situation in a way that will satisfy all parties.
• Ask your doctor or another health care provider to intercede with your employer, explaining the need for medical leave.
• Enlist the help of your co-workers. After all, they might need medical leave next.
• If you think you need a lawyer, consult your local bar association or organizations such as the National Coalition for Cancer Survivorship (www.canceradvocacy.org) or the Patient Advocate Foundation (www.patientadvocate.org), which provide assistance in locating legal resources.