healI’d much rather write about a legal topic than a personal one, but before I talk about the logistics of handling an employee who has exhausted their paid time off, I wanted to share a brief personal update.

Last November, I shared with you my wife’s diagnosis and treatment for cancer.  Because she is a fairly private person, I haven’t really posted an update since.  I’m pleased, however, to report that my wife has recovered well from surgery and the original cancer diagnosis.  We are now in the stage where you wait for each followup scan with a bit of anxiety — never quite feeling comfortable enough to declare yourself “cancer-free” but not worried about day-to-day survival.  Which is another way of saying that we’re doing ok right now.  Thank you all for your continued support.

Ok, back to business.

Suppose you run a business that has about 30 employees total — all in Connecticut. You’re not covered by the FMLA or CTFMLA or even the Connecticut Paid Sick Leave Act.  Charlie — your employee — has been battling cancer the last six months and has just used up his four weeks paid time off.  He is still dealing with the occasional chemotherapy treatment, but your policies — such as they are — don’t say anything about getting any more time off.

What are your obligations as an employer?

Well, you shouldn’t assume that you may not be covered at all by state or federal law.  The Americans with Disabilities Act requires that a reasonable accommodation be made for disabled employees — and that could mean that in some circumstances, an unpaid leave of absence may be suitable.  State law may have a similar imposition in some instances.

In the EEOC’s guidance on the topic, it states:

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability.  An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.  For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.

And indeed, that may be a solution that you stumble to regardless. But the fact remains that there are limits to the rights of an employee in this situation.  Charlie may not have the right to additional time off without losing his job.

So legally, an employer may decide (and again, consult with your lawyer about the specifics as not all cases are created equally) that it is within its rights to terminate the employee who has exhausted his paid time off.

But suppose you WANTED to give the employee additional time off — could you? Sure. You might give the employee time off unpaid but say that his job isn’t necessarily protected.

You may have to worry about the precedent this sets, but failure to treat your employee with additional courtesy may lead to bigger troubles of morale in the workplace and beyond.  On the other hand, giving an employee additional time off may get yourself some additional loyalty from that employee when he returns healthy.

It is these sorts of employment law questions that are the trickiest because while you may have some legal rights as an employer, you may feel that you have an obligation (moral perhaps?) to act otherwise.  For those, think carefully through each decision and seek appropriate legal help to guide you through it.  I’ve covered other issues with cancer in the workplace here, for example.

Hope you all had a wonderful Thanksgiving weekend.

Last week, I shared my family’s personal story about how cancer has impacted us.  With that in mind, I thought I would share a few tips for employers.  Even if you don’t presently have an issue with an employee, it’s worth familiarizing yourself with some of the rules of the road.

First off, to no one’s surprise, cancer is very likely a “disability” under the ADA.  Even if an employee is in remission from cancer, they can still fall within the statute’s protections as having a “record of” a disability (cancer).

It is so common, that the EEOC has released set of questions and answers to address cancer-related employment issues.  It’s a good starting point for employers when facing these issues.

The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, his actual performance is the best measure of ability to do the job.

One question that the EEOC addresses, for example, is “When may an employer ask an employee if cancer, or some other medical condition, may be causing her performance problems?”

The EEOC does not bar such questions in their entirety.  Indeed:

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as extreme fatigue or irritability, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.

Continue Reading Cancer and the Workplace: Tips for Employers

The moment when you learn your wife has cancer gets imprinted on your brain in a hurry.

At least for me, it did.

That happened back in February of this year.  I haven’t talked about it on the blog yet for several reasons including that my wife is much more private online than I am.

But she suggested that I talk about it publicly on the blog now, if only to let others to know that they are not alone in having cancer affect them or a family member.  And to raise awareness of this very common type of cancer.

You see, my wife is young — if you still count the early 40s as young — with no history of colorectal cancer in the family.  So, when she was diagnosed, it came as a shock to her. And our entire family.

As the much-used phrase goes, life hasn’t been the same since then.

Getting diagnosed with cancer is both scary and frustrating.  Scary for the obvious reasons, but also frustrating, because medicine moves at its own pace. Doctors are careful and cautious, making sure to get the treatment plan right.  And treatments typically take many months.

It’s also both physically and mentally exhausting not only to the person who is diagnosed, but to the entire family.

My wife’s cancer wasn’t caught early, but the doctors told us that they believed they didn’t catch it too late either.  However, they outlined a long and fairly new treatment protocol that we have been living with ever since the diagnosis.

We have been fortunate to work with local doctors at Hartford Hospital (a terrific client of my firm as it turns out) and super specialists in New York at Memorial Sloan Kettering.  She underwent four grueling months of chemotherapy earlier this year followed by nearly 2 more months of chemo with radiation.

That, however, was just the warm up.

Early this month, she underwent a planned 15-hour complex surgery with three surgical teams at Memorial Sloan Kettering Cancer Center.  Her recovery from such a major surgery has been slow, but steady.  She finally returned home in the last few days for further rest and recovery.  The care we received at MSKCC was outstanding.

And yet, despite the difficult nature of the surgery, we are thankful for the news we recently received: After several more weeks of recovery, the doctors have given her (and us — since cancer really is a “family” disease, as the doctors have reminded us time and again) a very good prognosis going forward.

With Thanksgiving upon us, we certainly have a lot to be thankful for.

Careful readers might notice a lot more posts from my colleagues here at Shipman & Goodwin this year. That’s not an accident. My colleagues have been so supportive in both substantive work and for the blog.  I’m so thankful for their support.

I’m also thankful for the support of countless others who have brought meals to our house, or helped in other ways.  And thankful for the world-class care my wife has been receiving both here in Connecticut and in New York.

I’m thankful as well to have this bully pulpit.  I hope to use it in an upcoming post or two to talk about the employment law issues related to this topic from a more personal experience.

But my wife didn’t want this post to be about her.

As I said at the top, we wanted to raise awareness of the issue.  Colorectal cancer is the second leading cause of cancer deaths in the United States.  Over 135,000 people will be diagnosed with colorectal cancer this year alone.

Yet, compared with other types of cancer, it receives less publicity. I won’t debate the causes here, but it’s time we recognize how serious this disease is here in the United States.

So here are three things you can do right now.

First, get screened for colorectal cancer.  Make your appointment today if necessary.  From a colonoscopy to at home tests, screening remains the single best way to beat this disease. When caught early, the survival rate is significantly higher.  And you’re never too young to start thinking about it.  Colonoscopies are quick and painless.  If Katie Couric can do it, so can you.

And trust me, colonoscopies are a lot easier than dealing with months of chemotherapy.

Second, follow one of the many groups focused on this issue such as the Colon Cancer Alliance.  Take the time to understand this issue.  And the spread to word to others.  And please consider donating to them as well.  There may not be an ice bucket challenge associated with it, but you’re over 25 times more likely to get diagnosed with colorectal cancer as you are to be diagnosed with ALS.

Third, and here is the lawyer in me speaking, consider updating your will, health care proxy, and other estate planning documents — particularly if you’re otherwise healthy. You don’t want to have to worry about them when you get diagnosed with a life-threatening illness.  My firm does this work, but there are many others who provide this service as well. And, at a minimum, consider one of the self-help legal sites to get the basics done if you don’t think you can afford to pay an attorney.

My posts here will remain somewhat sporadic for a while as I balance being a caregiver with work obligations as well.  But if this post causes just one of you to take the action steps outlined above, I’ll know that we can make something positive happen from such a tough diagnosis.

And if we can make something good happen from this post, I will be thankful.

Happy Thanksgiving to all.

It’s been nearly two months since Connecticut’s “medical marijuana” law became effective.  Yet many employers have been blissfully ignorant about what the law provides, perhaps because Connecticut does not yet have a home-grown supply of marijuana and the registration process is just beginning.

But because of the law’s appeal, I would expect the impact to increase substantially in 2013.  Here are some key facts employers ought to know now:

What does the law provide?

  • It is legal for certain individuals to possess limited quantities of marijuana for “palliative use.”

    Are Policies “Up In Smoke”?
  • “Palliative Use” refers to the alleviation of a “qualifying patient’s” symptoms of a “debilitating medical condition.”
    • A “Qualifying Patient” is a Connecticut resident aged 18 or older who has been diagnosed by a physician as having a debilitating medical condition.
    • A “Debilitating Medical Condition” includes cancer, glaucoma, AIDS or HIV-positive status, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, Crohn’s disease, PTSD, and any other medical condition approved by the Department of Consumer Protection pursuant to regulations to be adopted.
  • Persons who may possess marijuana include qualifying patients and their “primary caregivers.”
How is the law being implemented and enforced?

What is the impact for employers?

  • Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.
  • Employers may discriminate if required by federal funding or contracting provisions.
  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.
  • But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.
What about the interaction with the ADA?
 
There has yet to be a Connecticut case on this, but a recent case from the Ninth Circuit suggests the answer to the question: “What do I do if my employee asks to be permitted to smoke medical pot at work as a reasonable accommodation for a disabling medical condition?”  Because federal law still prohibits possession/use of marijuana, the court concluded that the ADA does not require this accommodation.
 
Will Connecticut law follow? We likely won’t have an answer to this question for some time.
 
What should employers consider doing now?
 
Employers should educate their staff as to the requirements of this new medical marijuana law and update policies, where necessary, to reflect the new legal requirements. 
 
For more on the national marijuana legalization trend, see this article in today’s Employment Law Daily.  And for more on the Connecticut law in general, see this article from the Connecticut Lawyer magazine (CBA membership required.)

It’s the stuff of television shows.  

In the middle of trial, a plaintiff (who is claiming his employment was terminated, among other reasons, in retaliation of his exercise of FMLA rights) drops a bombshell:

[In the prior October], I learned that I had — have stage III prostate cancer with a metastatic brain lesion."

While the cancer may have been known in the abstract, the "metastatic brain lesion" is not.  The employer’s counsel moves for a mistrial and the court orders an immediate hearing (and disclosure of medical records) to receive some additional facts.

During the hearing, however, there’s another another unexpected development: The medical records show that the employee did not have (and never had) a metastatic brain lesion.  Because the jury already heard the testimony, the court grants the request for a mistrial. 

But the fireworks continue.  Counsel for the employer says that a dismissal of the whole claim may be appropriate and asks the court to allow for some discovery.

And in a deposition, the plaintiff/employee discloses that some six months before trial, he knew that he definitely did not have a brain tumor.

What then? 

Dismissal, according to a federal court decision released on Friday.

In Radecki v. GlaxoSmithKline (download here), the court concluded that the plaintiff committed perjury in his testimony and that because the perjury was so serious, dismissal was the only appropriate mechanism.

Having "concluded that the plaintiff willfully provided false testimony for the improper purpose of causing the jury to feel sympathy for him", the Court discussed how perjury during trial is "intolerable."  Any sanction other than dismissal would give the appearance of the court’s tacit approval of such conduct:

To have the plaintiff in this case pay a monetary penalty and then return to court and present his case before a new jury would give the appearance of tolerating “a ‘flagrant affront’ to the truth-seeking function of adversary proceedings,”, even if (or perhaps especially if) the court allowed the defendant to use the plaintiff’s perjurious testimony from the first trial to attack his credibility. Therefore, the court concludes that the most appropriate sanction in this case is a sanction of dismissal with prejudice.

As the court noted, this situation is extraordinarily rare. Indeed, the Court struggled to find comparable cases from which to draw its conclusion. (For a case out of Ohio, check out this post by the Ohio Employer’s Law Blog.)

But the message the court sends through this case is anything but muddled: If you think real-life trials are just like television shows, where perjury is either condoned or is a plot device, think again.