Breast Cancer in the Workplace: The FMLA, Planned Medical Treatment and More

October has many themes as you can tell from our prior blog posts.  One important theme includes Breast Cancer Awareness Month.  

The U.S. Department of Labor (DOL) has helpful resources on cancer in the workplace, which we reference in our prior blog:  Cancer Knows No Season – Helpful FMLA Guidance from the Department of Labor   Here is a direct link to the DOL’s guidance: Workplace Protections for Individuals Impacted by Cancer | U.S. Department of Labor (dol.gov)

If an employee has cancer and is receiving treatment or caring for a family member with cancer, they likely qualify for leave under the Family and Medical Leave Act (FMLA) as well as state paid or unpaid family and medical leave (PFML) law(s) and benefits under state Temporary Disability Laws.  For paid disability and PFML benefits, check out Reliance Matrix’s summary here:

Statutory Disability and Paid Family and Medical Leave Laws (reliancematrix.com)

 It is relatively common for employees who have cancer to need intermittent or reduced work schedules due to treatment.  If the employee qualifies for leave under the FMLA, do not forget that the FMLA has a specific regulation addressing planned medical treatment.  This is a special category of intermittent leave permitted by the FMLA, and the FMLA statute and regulations provide the following  tools to assist employers in managing this type of intermittent leave. 

 Notice of and Scheduling Leave for Planned Medical Treatment

Planned medical treatment is, by its nature, foreseeable. The FMLA statute has sections requiring an employee to give advance notice of such leave, and to make a reasonable effort to schedule the leave so as not to disrupt unduly the business operations of the employer. See 29 U.S.C.A. § 2612 and 29 C.F.R. § 825.302 and 825.303.

Enforcement of Employer’s Absence Reporting Procedures

The FMLA regulations also allow employers to enforce their usual and customary notice and procedural requirements for requesting leave and to delay or deny the requested leave when the employee fails to do so without good reason.  29 C.F.R. § 825.302:

(d)  Complying with employer policy. An employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer's policy to contact a specific individual. . . . Where an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

Transfer to a temporary equivalent position

Another tool available to employers under the FMLA regulations is the ability to transfer the employee needing time off for planned medical treatment to a temporary equivalent position that better suits the employee’s or family member’s treatment schedule.  This may or may not be a practical alternative and needs to be carefully evaluated on a case-by-case basis.   The alternate position does not have to have equivalent responsibilities, but it does need to provide equivalent pay and benefits.  For an employee with a regular and frequent cancer treatment schedule, such as an employee receiving chemotherapy, this option may provide the employer a good workplace or staffing management tool.   

            9 C.F.R. § 825.204:

Also, check out our prior blog on planned medical treatment and the FMLA, where we cover planned medical treatment in general.  It is linked here: Responding to FMLA Intermittent Requests for Planned Medical Treatment - When Does This "Unduly Disrupt" Operations?

In addition, an employee with cancer likely has a disability as defined by the Americans with Disabilities Act (ADA) and as a result, is entitled to reasonable accommodation(s) which may include a reduced or modified schedule and/or continuous leave depending upon the individual situation of the employee and their needs.   The Equal Employment Opportunity Commission (EEOC) has specific guidance relating to Cancer in the Workplace which is linked here: Cancer in the Workplace and the ADA | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Employees with cancer need support from their family, friends and their employer during this difficult time.   Employers should be aware of the workplace protections and applicable laws that exist for employees under federal and state law.

Reliance Matrix Can Help!

Reliance Matrix offers employers leave administration and accommodation services under the FMLA, ADA and equivalent state laws.  For more information, contact your Reliance Matrix account manager or send us a message to AbsenceMentor@rsli.com. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at AbsenceMentor@rsli.com.