by Loring Spolter, Esquire

Workplace Rights for Cancer Patients and their Family Members

Loring N. Spolter, Esquire, practices in the field of employment discrimination in Ft. Lauderdale, Florida.

People with cancer, leukemia, Hodgkin's Disease and other serious medical concerns are at high risk for employment discrimination, and so are their caregiving family members. That's why the Family and Medical Leave Act, abbreviated as FMLA, is such an important Federal law. FMLA permits people with serious medical concerns, and certain of their family members to take unpaid leaves of absences from work, and ensures they have jobs to come back to. With FMLA, persons with serious illness can obtain time off from work to seek treatment and recuperate. Healthy family members can obtain leave to provide close relatives with psychological encouragement of other caregiving assistance.

To qualify for FMLA leave, employees must:

1. have worked for their current employer for no less than 1,250 hours over 12 consecutive months;
   
2. be a part of a workforce having no less than 50 employees within 75 miles of their jobsite; and
   
3. intend to return to their jobs at the end of their leave period.

Employers are not required to pay wages during FMLA leave periods and may also require workers to exhaust days allocated for paid vacation time and sick leave before FMLA absences may be utilized. The duration of leave may last as long as twelve weeks. Employers who normally pay for workers' health insurance premiums, fully or partly, must continue during the FMLA period. Employers must reinstate returning workers to positions similar to those previously occupied. Alternatively, workers may utilize frequent shorter absentee intervals, such as taking off one or two full days or afternoons per week. When workers must make use of these brief intermittent leave periods, FMLA provides employers with broader flexibility to alter their work duties.

While FMLA protects employees working for the private sector and the Federal Government, a growing number of judges are ruling state and local governments don't have to comply with this law. However, many states and municipalities have FMLA-type laws or regulations protecting those within their employ.

When winning FMLA cases at trial, judges are obligated to award employees an amount equal to double their actual lost wages and certain expenses such as monies paid for COBRA coverage or unpaid medical bills resulting from lapses on insurance payments. Only those employers managing to prove that they broke the law in "good faith" escape the doubling feature, but still remain liable for the actual economic damages they caused.

Judges may also require employers to compensate workers for lost future wages. Reimbursement for so called "front pay" or the differential for what will be earned months or years ahead at one's replacement job as compared to wages paid by the violating FMLA company, can be significant. Also, employees who prevail at trial are typically awarded additional monies for attorneys fees and certain litigation costs.