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Know your Rights: FMLA and Mesothelioma

fmla mesothelioma rights

Mesothelioma is a devastating form of cancer caused by exposure to asbestos. The deadly cancer can attack the lining of one’s lungs, abdomen, heart, or the lining of another internal organ. If you have been diagnosed with mesothelioma or other asbestos-related condition, you may have rights in the workplace to protect your job in lieu of treatment. If you are a caretaker of an individual suffering from mesothelioma, you may also be entitled to rights in the workplace while you provide care for your loved one. 

What is the Family Medical Leave Act?

The Family Medical Leave Act (FMLA) is an agency within the U.S. Department of Labor. If qualified, an individual may be granted up to 12 workweeks of unpaid leave per year. FMLA protects one’s job as well. If a person is terminated for exercising their right to FMLA, they can file suit with the Department of Labor or the Equal Employment Opportunity Commission (EEOC) depending on the circumstances.

FMLA not only protects your job while on leave, but it also requires that any group benefits, including health, be maintained throughout the approved leave. 

According to the Department of Labor, “FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.”

Patients with mesothelioma or their caregivers can allow for more time to attend the necessary appointments and treatments. The leave can also be utilized for surgery and post-operative care.

Do I Qualify for FMLA?

Not every business offers FMLA. There are strict requirements that must be met before a public agency or company legally has to offer FMLA. FMLA extends to all public agencies (public and private elementary and secondary schools).

FMLA also applies to companies with 50 or more employees. The employer is required to permit an eligible employee with up to 12 weeks of leave per year. The reason for the leave must be “reasonable” and supported by relevant documentation. 

Covered Employers under FMLA include:

  • Private Employers (50 or more employees within a 75-mile radius)
  • The employee works at the company’s location that employs 50 or more employees
  • Public Agencies (federal, local, or state) regardless of the number of employees
  • Public or private elementary or secondary schools irrespective of the number of employees

An employee is eligible for FMLA if:

  • The employee works for an employer covered under FMLA
  • The employee has worked for the employer for at least one year (12 months). 
  • The employee has worked a minimum of 1.250 hours pursuant to the FLSA (Fair Labor Standards Act)
  • The employee works at the company’s location that employs 50 or more employees unless it is a local, state, or federal agency or other covered public agency mentioned above. 

FMLA covers several medical instances where an employer is required, with the appropriate documentation, to grant leave. It is vital that an employee follows all of the requirements under FMLA. This can include providing proper documentation, requesting leave in the appropriate amount of time, and communicating with their employer while on leave. 

If you or a family member have been diagnosed with mesothelioma or any other serious health issue which limits you from being able to perform your essential job functions, you can apply for leave as long as it is under a covered employer. If a family member works for a covered employer, they may also exercise their right under FMLA to care for you. It extends to a family member (brother, sister, parent, or spouse) to care for a loved one with a serious medical condition such as mesothelioma. 

Intermittent FMLA

In some cases, employees may elect to take FMLA leave on what is known as “intermittent FMLA.” According to the Department of Labor, “…an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operations.”

Intermittent FMLA may be beneficial to family members taking care of a loved one battling mesothelioma. This assures the patient that they can receive transportation to doctor’s visits or to treatment. 

Protections Under FMLA

The purpose of FMLA is to provide eligible employees with a balance and peace of mind without fear of losing their jobs in the midst of a qualifying condition. The Department of Labor provides certain protections before, during, and after FMLA. 

The most essential protections during FMLA include:

  • Group Health Insurance Benefits – An employee is entitled to uninterrupted continuation of group health benefits during their leave. This also includes any family member that was covered under the group health insurance benefits. In turn, an employee must also continue to contribute to the cost of the premiums. 
  • Other Group Benefits – Any other benefits that were being afforded to an employee prior to the leave must continue while the employee is on leave. 
  • Substitution to Paid Leave – Instead of unpaid leave, employees may “… ‘substitute,’ or run at the same time as their FMLA leave, accrued paid leave (such as sick or vacation leave) to cover some or all of the period of FMLA leave. An employer may also require employees to substitute accrued paid leave for unpaid FMLA leave even when the employee has not elected to do so.”

As of January 2020, there are five states that offer paid family leave. According to a source, “[t]he states that do have this program provide partial wage replacement during a leave for a limited period, while a covered family member is off work to provide caregiving services for a family member.” The five states that currently offer paid leave include Washington, Rhode Island, New York, New Jersey, and California. Be sure to confirm with your local government or attorney to discover if such an option may be available to you and your caregiver. 

The Department of Labor also provides protections upon an employee’s return from leave. This is commonly referred to as job restoration. The Department of Labor requires that when an employee returns from leave, they must be restored to their job or to an “equivalent job.” It is important to note that an employee is not guaranteed to be placed in the exact same position they held before.

Further, an employee cannot be “demoted” for such reasons. A demotion, in this sense, refers to an employer acting in retaliation for the employee engaging in leave. A demotion commonly includes a dock in pay, which is unlawful under most circumstances provided under FMLA. At times, the employer may be allowed to move you to a similar position, called a “lateral transfer.” However, the position must be similar in nature and not reduce your pay.

The Department of Labor provides that an employee cannot be terminated for exercising their rights under FMLA. More Specifically, the Department of Labor states that “[i]t is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice or because of involvement in any proceeding related to the FMLA.”

There are some limitations on protections afforded under FMLA. An employee is not protected from an action that would have otherwise occurred if the employee was not on FMLA. If you feel like your rights have been violated, you may also contact the Department of Labor to find out how to file a complaint with the Wage and Hour Division. There are certain contingencies that an experienced lawyer can evaluate on your behalf. Finding a lawyer who specializes in mesothelioma litigation can also discuss other potential job protections and compensation you may be entitled to. 

Communicate with your Doctor

Your health is your top priority. It is imperative that you discuss your work situation with your doctor to discuss your ability to work and any restrictions that may follow. You and your doctor should discuss how your treatment of mesothelioma could impact your job performance or the best time to set-up treatments to best work around your schedule. 

FMLA and Mesothelioma Outlook 

FMLA is a solution that either a mesothelioma patient or their caregiver could take advantage of to take leave without losing their group health benefits. Cancer has been known to take a physical and mental toll not only on the patient but on their family as well. It is important to be aware of your rights and utilize them if the occasion should arise. FMLA is aimed to reduce the stress that comes with a cancer diagnosis in an effort to allow for time to plan for treatments, appointments, surgeries, and recovery. 

If you are experiencing issues in the workplace or have any questions about your rights, you should contact an experienced mesothelioma attorney to learn about your rights.

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