Monday, September 20, 2010

More on cancer as a disability

Last week I wrote how businesses would likely see more employees claim cancer as a protected disability under the Americans with Disabilities Act. The EEOC proves my point. The agency recently announced that it has sued a Michigan company for failing to accommodate an employee who needed a reduced work schedule while undergoing cancer treatments:
According to the agency’s pre-suit investigation, Derek Nelson, who had been employed by IPC as a machinist for over ten years, went on medical leave in 2008 in order to undergo chemotherapy. The EEOC’s suit alleges that in January 2009, when Nelson sought to continue working part-time while he completed his treatment, IPC discharged Nelson for exceeding the maximum hours of leave allowed under company policy. That decision, the agency contends, violated IPC’s obligation to reasonably accommodate Nelson’s disability.
Meanwhile, in Boca Raton, Florida, a federal jury awarded Kara Jorud $8.1 million for her claim that Michael’s Arts and Crafts terminated her because of her cancer.   Ms. Jorud, suffering from breast cancer, had a double mastectomy and was ill from the follow-up chemotherapy. She claimed that her manager forced her back to work early following her surgery, required her to work while ill, and harassed her. The Palm Beach Post recounts Jorud’s manager telling her, “How often do you have to do this? You will be here on Monday after chemo.” fills in the rest of the details:
In her lawsuit, Jorud said she had taken a six-week medical leave following her surgery, but within days the cancer patient began taking calls from her District Manager inquiring as to her return. Jorud was originally tasked to turn around the store’s reportedly failing operations.
Jorud returned to work less than a month after surgery because, she testified, she feared for her job.
At one point, the plaintiff brought her fiancé and his son into the store to help her shift inventory ahead of a pending delivery because she was weak from the aftereffects of chemotherapy. The cancer patient was fired three days later, reportedly one day before her next scheduled chemotherapy treatment.
The plaintiff was also accused of theft prior to her firing, a charge that Jorud later disproved and the district manager later admitted to be false, according to the newspaper account.

These cases should serve as a warning sign for employers dealing with employees with serious treatable illnesses. It is no longer enough to provide an employee the statutorily mandated 12 weeks of FMLA leave, or to merely follow one’s own leave of absence policy. Instead, as these cases illustrate, employers should consider reasonable accommodations such as part-time or modified work schedules.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or