An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery and recovery.
Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.
Do you …
(a) Fire him.
I hope you picked “c.”
An Atlanta distributor of industrial supplies chose “a,” and it cost them $75,000 to settle an EEOC lawsuit. From the EEOC’s news release:
“Medical leave is a widely recognized accommodation, and in Mr. Smith’s case, could easily have been granted, preventing the firing of a valuable employee. However, instead of accommodating him, Vallen fired him less than 24 hours before his surgery,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. …
Darrell Graham, district director of the Atlanta office, said, … “An employee should not be forced to risk termination for seeking leave to treat a medical condition, which can be a perfectly reasonable accommodation under federal law.”
1. Unpaid time off can, and often does, qualify as a reasonable accommodation under the ADA, whether or not the FMLA applies. Moreover, if you fail to consider it as a reasonable accommodation, you’ve likely violated the statute.
2. Firing someone who asks for a few weeks off for cancer surgery is awful. It’s even more awful if you wait until the day before the surgery to do the firing.
3. Given the egregiousness of the violation, $75,000 seems light (although I don’t know all of the particulars of this employee’s damages).