Cancer Patient’s Firing Raises ADA Accommodation Questions

Avoid assumptions about illness; explore creative schedules, new duties

By Dana Wilkie Sep 19, 2014
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The story of a Pennsylvania dentist who fired a longtime employee in August after she told him she had cancer created a social media firestorm, and raises questions about the best way to handle a worker diagnosed with a catastrophic illness.

Dr. George Visnich, an oral surgeon who practices in western Pennsylvania, fired Carol Jumper without compensation, explaining in a letter that “You will not be able to function in my office at the level required while battling for your life. Because of this, I am laying you off without pay as of August 11, 2014.”

After the letter went viral on social media sites, and major news organizations published it, Visnich’s lawyer told CNN.com that the dentist only wanted to help Jumper collect unemployment benefits and told her she could return to her job when she was ready to work.

Employers should never assume that a suddenly ill employee can’t work, and should first explore accommodations that might make the employee’s duties easier, said Jonathan R. Mook, an attorney with Alexandria, Va.-based DiMuroGinsberg PC, and a nationally recognized authority on the Americans with Disabilities Act (ADA).

He pointed out that the dentist made possibly erroneous assumptions when he wrote in his letter that “the symptoms of the disease, the pain medications you will need, and the side effects of the chemotherapy will be significant and distracting.”

“This type of analysis is woefully inadequate under the ADA,” Mook said. “The employer should have entered into an interactive process with the employee to determine whether she could continue to perform her job functions with an accommodation—or an alternative job—before the employer decided that termination was the only option.”

Current and recovering cancer patients are protected against job discrimination under the ADA as long as they can perform a job’s essential functions. The act’s provisions apply to employers with 15 or more workers. Employers with fewer workers frequently must comply with state laws that offer similar protections.

The ADA also requires employers to offer reasonable accommodations to cancer patients. However, an employer isn’t required to eliminate essential functions of a job as part of the accommodation process, said Michael E. Barnsback, an employment law attorney with Alexandria, Va.-based LeClairRyan.

Anne Hirsh, co-director of the Job Accommodation Network at the U.S. Labor Department’s Office of Disability Employment Policy, said her office might suggest that a dentist explore whether an employee who typically stands can do her job sitting on a rolling stool. If pain medications are involved in cancer treatment, she said, an employer should first verify that the employee is experiencing side effects that make work difficult. If the employee is, she said, then “maybe a schedule change is necessary—perhaps when she doesn’t have side effects the first thing in the morning, or doesn’t have them later in the afternoon.”

If an employee no longer can perform his or her job duties even with a reasonable accommodation, including reassignment to a new position, then an employer may be able to fire the employee and not run afoul of the ADA.

“If there are no reasonable accommodations that would enable the employee to perform the essential functions of her job, then she would not be qualified for the position and could be subject to termination,” Barnsback said. “Employers, however, should not be quick to conclude that no reasonable accommodations exist. The purpose of the interactive process is to identify and consider potential accommodations. Many employers [also] forget to consider leave as a reasonable accommodation.”

The legality of a firing may depend on whether the employer first exhausted options for accommodating the worker, and whether an employer refused to offer an accommodation that would be considered reasonable by a court but that the employer deemed “unreasonable” because of its cost or complexity.

Taking advantage of short- or long-term disability insurance might be another option for a sick employee. No federal law requires companies to carry such insurance, however. And small companies may be less inclined than larger ones to offer it. Even employees at companies that do offer it may discover that insurance adjusters’ standards for writing a disability check are quite strict.

Jumper’s predicament, Mook said, may present a good argument for why companies should offer disability insurance.

“If a situation arises where an employee develops a devastating illness, and cannot perform his or her job duties even with a reasonable accommodation, then the employee, at least, can take advantage of the employer’s paid [disability] insurance,” he said. “An employee in this situation is much less likely to sue the employer or go to the press, than [one] who basically is out on the street.”

Dana Wilkie is an online editor/manager for SHRM.
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