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The FMLA Provides Some Job Protection For Cancer Victims, But Is Very Technical

February 20, 2014

We are blogging on Mark Oberti’s paper on the “5 Things Employers And Employees Need To Know About Cancer In The Workplace

The FMLA provides up to 12 weeks of job-protected leave per year for employees suffering from a serious health condition. An employee is eligible for FMLA leave when he or she has worked for a “covered employer” at least twelve months, and worked “at least 1,250 hours of service with his employer during the previous 12 month period.” 29 U.S.C. §§ 2611(2)(A) & 2611(2)(B)(ii). To be a “covered employer” under the FMLA, a business must “employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” 29 U.S.C. § 2611(4)(A)(I).

Interference with FMLA rights includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b). Furthermore, “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” Id. § 825.220(c). For example, in Kinney v. Holiday Companies, 398 Fed. Appx. 282 (9th Cir. 2010), the employee took FMLA leave for cancer treatment, returned to work, and was fired a year later – shortly after her cancer returned. She sued under the FMLA, and presented evidence that the employer’s managers involved in the termination decision were aware that her cancer had returned and discussed whether she had taken FMLA leave shortly before she was terminated. The Court of Appeals concluded that “[s]uch evidence creates a triable issue as to whether her potential need for FMLA leave in the future was a negative factor in Holiday’s decision to terminate her.” Id. at 284.

The FMLA is a highly technical law. Employees and employers should generally not try to navigate it without guidance from experienced labor and employment lawyers, such as Mark Oberti and Ed Sullivan – both of whom are Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.

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