The story is all too common. After months of fighting, it looks like you have finally overcome your breast cancer diagnosis. All that is left is for some follow-up treatments and to return to work. To your surprise, after having fought off breast cancer, you now find yourself in a fight with your employer over the nature of your return.
We like to think that most employers will warmly embrace the return of an employee who has survived a breast cancer diagnosis. But that is not always the case. Below, we outline the Top Five steps that an employee must take when returning to work following a breast cancer diagnosis.
1. Notice With Detail. You’ve overcome the initial diagnosis but will still need to follow up with your doctor for monitoring and additional treatment. The first step to returning to work is communicating with your employer about your condition. Many people are embarrassed about sharing medical information with their employer, but you have an absolute obligation to do so if you want to trigger your rights under the Family and Medical Leave Act (“FMLA”) or the Americans with Disabilities Act (“ADA”). You do not need to provide all of the particulars, but you will need to discuss the diagnosis and the details of your treatment and monitoring regimen.
2. Communicate, Communicate, Communicate. You provided your employer notice about your medical situation, but your obligation is not done there. You need to communicate with your employer about the accommodations you will need to be successful at your job. Do you need to work remotely? Do you need a reduced work schedule or work load? Will you need intermittent leave to deal with treatments or additional chemo-therapy? Merely telling your employer of your diagnosis is not enough. You need to communicate regarding the accommodations that you need as well. In addition, you should keep your employer apprised of how the accommodations are working. Are the accommodations sufficient? Could they even be scaled back? Engaging with your employer is a good idea to maintaining a positive employment relationship and protecting yourself and your rights should the employer retaliate against you for requesting leave or an accommodation.
3. Cooperate. Hand-in-hand with the need to communicate is the need to cooperate with an employer. If your employer needs additional medical information, provide it. If HR needs to speak with your physician, allow them. The employer has a right, within reason, to verify your health condition and determine if alternative accommodations are appropriate. Being intentionally obstructionist or simply failing to provide the information requested does nothing but strain your employment relationship and weaken any potential claims that you may have. It is an uncomfortable but necessary step.
4. Knowledge of Rights. Subject to some limited exceptions, most employees who have worked with their employer for twelve months are permitted to take twelve workweeks of leave in a twelve month period. This right is conferred to employees through the Family and Medical Leave Act. Additionally, it is important to note that employees who have exhausted their leave entitlement rights under the FMLA still have the right to take leave under the Americans with Disabilities Act. The standard for evaluating a disability is different under the ADA than it is under the FMLA (and perhaps more rigorous), which is why it is crucial for you to provide complete information to your employer so that it may determine the extent to which you require leave.
5. Be definitive and specific. A common pitfall for employees is accepting a supervisor’s promise without putting anything in writing. All too often, a supervisor will tell an employee, “Don’t worry about it. Do what you have to do. We’ll work it out.” It is tempting for an employee to accept the supervisor at his or her word. The employee may think that the supervisor is doing her a favor by granting leave or an accommodation and that she should not “rock the boat.” Alternatively, the employee may simply have a strong relationship with the supervisor and trust that she will be taken care of. My strong recommendation is to graciously accept the supervisor’s well wishes but very tactfully insist that a plan be put into writing. You want to be absolutely clear that you are taking leave to obtain medical treatment and be definitive in the types of accommodations you are requesting and the reasons for those accommodations. Even the best employment relationships can turn sour. Moreover, your well-wishing supervisor could leave and be replaced with someone who does not care at all about your health. Get everything in writing. It may be uncomfortable in the short run, but will protect you as you move forward with the company and with treatment.
You have already overcome numerous adversities in order to get back to work. Dealing with a difficult employer can be a challenge, but it is one that is surmountable. Remember the steps that we have outlined above, but, of equal importance, you should not view any accommodation request as a “favor” from your employer. The law is here to protect you. For more information visit www.employmentlawgroup.com.
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