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.
Cancer and the FMLA: Family Medical Leave Act
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 FMLA 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 reinstate you to your job — or an equivalent one — upon your return to work.
The specifics of the Family and Medical Leave Act can be found on the U.S. Department of Labor website. But it can take 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 (within a 75-mile radius of the employee’s work site) for at least 20 workweeks during the calendar year. Employers who have fewer than 50 employees are not required to provide medical leave under the 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. Employees can take the 12 weeks all at once or in segments; the latter is called “intermittent leave.” Intermittent leave can be useful in many circumstances. For example, you may want to take every Monday off for a follow-up appointment, or use FMLA time on days you don’t feel well as a result of treatment.
- Employers are required to continue your health insurance coverage as if you were still working. That means, of course, that if you were responsible for paying any of your health insurance premium while you were working, you will be required to continue doing so while on leave. This applies only to your health insurance; employers are allowed to stop paying all other benefits (e.g., disability and life insurance) while you are out on leave.
- When you return from leave, you must be reinstated to 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.
- Unfortunately, the leave you are granted through FMLA — 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 can require that you take your vacation, sick days and personal time while on FMLA leave. You are also entitled to choose this option. The benefit to using your FMLA concurrently with any paid time off you may have is that you are getting paid and your job and health insurance are protected.
Do Your Part
You can ease the process of trying to secure 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 the 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. Remember that the exact diagnosis may not be required on a medical certification form, so if you are choosing to keep your diagnosis confidential at work, make sure that your healthcare team is aware of that.
Put the FMLA to Work for You
Under FMLA, two provisions are often overlooked:
- As indicated above, leave can be taken intermittently. This can be useful, especially for cancer patients, who may need only a few days — not a few weeks — to recover from each chemotherapy session.
- 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 is.
Know What’s Legal and 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 is not allowed to hire a healthcare provider who works for the company to give that opinion). If the second opinion differs from 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.
How to Negotiate with a Small Employer
If the FMLA does not apply to your employer, you can still try to negotiate a medical leave. Here are some suggestions:
- 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. To find out what’s happening in your state, you can contact your state’s Department of Labor. Or, check Triage Cancer’s list of employment-related laws for each state.
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 for getting 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. Workers covered under the ADA can request medical leave as a reasonable accommodation. For more on the ADA and reasonable accommodations, see “Your Legal Rights in the Workplace: Cancer and the ADA, FMLA, etc.”
If you pursue various options but still feel as though you’re not getting what you’re entitled to, consider the following:
- Try to open a thoughtful, professional dialogue with your employer, in which you let them 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 healthcare provider to intercede with your employer, explaining your need for medical leave.
- Enlist the help of your coworkers. After all, they might need medical leave at some point as well.
- If you think you need a lawyer, consult your local bar association or organizations such as the National Cancer Legal Services Network or the Patient Advocate Foundation.