Wow,Worker with breast cancer terminated!

Livelovelaughhope

PRESS RELEASE

6-19-2012

Johns Hopkins Home Health Care to Pay $160,000 to Settle Disability Discrimination Lawsuit

EEOC  Charged Health Care Provider Failed to Accommodate Employee with Breast Cancer, then



BALTIMORE -- Johns Hopkins Home  Care Group, Inc. (JHHCG), a full-service home health care provider, will pay  $160,000 and provide other relief to settle an Americans with Disabilities Act  (ADA) lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  In its lawsuit, the EEOC alleged that JHHCG  violated the ADA when it discriminated against an employee because of her  disability, failed to provide her with a reasonable accommodation for her  disability, and retaliated against her for bringing her claims to the  EEOC.

According to the EEOC’s suit (Case  No. 11-cv-01911-WDQ), filed in U.S. District Court for the District of  Maryland, Northern Division, JHHCG had employed Ray Ellen Fisher, a registered  nurse, as a pediatric case manager since 2003.   Fisher was diagnosed with breast cancer in September 2009, and her  medical treatment required that she take leave shortly thereafter.  Following Fisher’s period of leave, when she  was cleared to return to work, JHHCG failed to provide her with a reasonable  accommodation that would have allowed her to return to work despite her limited  restrictions – restrictions that were progressively phased out.  After JHHCG failed to reasonably accommodate  her, Fisher filed a discrimination charge with the EEOC and she was then  subjected to retaliatory adverse employment actions and terminated.The ADA prohibits an employer from  discriminating against an employee because of her disability, and further  requires an employer to provide reasonable accommodations that enable the employee  perform the essential functions of her position.  In addition to the protections against  discrimination and the requirement to accommodate, the ADA also protects  individuals from retaliation for exercising their rights to be free of  disability discrimination.  The lawsuit  was filed after the EEOC first attempted to reach a pre-litigation settlement  through its conciliation process.

"The Commission has  devoted considerable effort to ensuring compliance with the ADA  through the issuance of policy and public education,” said EEOC General  Counsel P. David Lopez.  “As this case demonstrates, the EEOC will  work to ensure that the employment of persons with disabilities such as  cancer will not be compromised because of disability.” The three-year consent decree  settling the lawsuit provides $160,000 to Fisher in lost wages and compensatory  damages.  The decree also requires JHHCG to  train its human resource personnel and managers on compliance with federal  anti-discrimination laws, with an emphasis on the ADA and reasonable  accommodations.  JHHCG will also  implement and disseminate a modified ADA reasonable accommodation policy to  enhance the reasonable accommodation process and promote compliance with the  ADA, and will post a notice for employees describing its obligations under the  ADA and affirming its commitment providing a work environment free from illegal  discrimination.

"Thanks to improvements in  treatment and early detection, millions of women are surviving breast cancer  today,” said Debra M. Lawrence, regional attorney for the EEOC’s Philadelphia  District Office which includes Maryland.   “Despite  these gains in cancer survival rates and the passage of the ADA, people with  cancer still experience barriers to equal job opportunities.  An employer must  provide a reasonable accommodation to an employee with cancer, whether it is  needed because of limitations caused by the cancer itself or the side effects  of medication and/or treatment for the cancer.   I am pleased that JHHCG took the allegations in the EEOC’s complaint  seriously, cooperated in resolving this matter, and agreed to take steps to  ensure that its employees are free from disability discrimination and receive  the accommodations they are entitled to under the ADA.”According  to the company’s web  site, Johns Hopkins Home Care Group, Inc., is owned and operated by Johns  Hopkins Health System and Johns Hopkins University and has been serving  Maryland since 1983.The EEOC enforces  laws  prohibiting employment discrimination.   Further information about the EEOC is available on its web site at www.eeoc.gov.

rayofsun

Bump

Livelovelaughhope

Bump.

camillegal

Wow is right interesting-----------------BTW what does Bump mean?????

Livelovelaughhope

Bump is a way to get a topic back on the list.

camillegal

Thanks---LLL

Livelovelaughhope

Bump

Chickadee

Important post to remind us not to roll over when some idiot supervisor or poorly trained HR stooge needs re education. Call in the big guns.

camillegal

I really thought this was an illegal thing to do, but who knows.

Livelovelaughhope

Yes we have rights cancer is a disability, need to get the word out.

Good for her for fighting.

cheryl1946

This was done to an RN working for a Home Health agency.

You'd be surprised what hospitals,nursing homes,and home health care agencies try to do to workers. That's why I supported the ANA union when I worked.

Cindyl

camilleagle -- Yes.  and No.  You cannot fire someone because of a disability unless they are unable, with "reasonable accommodations" to do their job. 

 So say Christopher Reeve was a dockworker at the time of his injury.  He can't do that work anymore, no matter what kind of a fancy wheel chair we get him fitted out with. We can fire him.  As an actor, and director, he was able to continue to work.  If he had been employed by a studio, still able to direct movies, but we fired him because we were not willing to put in a ramp?  He has a case.

 Now for cancer patients, things get really tricky.  Some of us are able to do everything we did before our diagnosis, just need some time to heal.  The feds require our employers (if they employ more than 50 people) to give us 12 weeks leave at least.  Now they don't have to give us our exact same job back, but it should be comparable.  If they try to fire us without that 12 weeks, we'd have a case.  Where things get really tricky is when we can't do everything we did before.  Maybe the job required lifting, and we can't do that, maybe the fatigue is so bad we need little nap in the middle of the day.  Maybe many things... In that case the employer is required to work with the employee's individual situation to come up with a reasonable accommodation that will allow the employee to keep doing her job.  So maybe duties are shifted and less standing is required, maybe a different workstation would do the trick. The employer is required to at least try.  Otherwise the employee has a case.

But at the end of the day, if the employee can't do the job, they can be terminated.  Let's say we have an employee  who's only essential function is to be at work to help customers. She can no longer stand for hours so we gave her a chair, but she just can't reliably get herself to work on the schedule we need. There is no accommodation that we can make that will allow her to be at work when she really needs to be getting chemo.  We cannot shift her hours, because these are the hours she is needed. She can be fired.  Now, in a just world, we'd try to find her a job she could do from home, or something that isn't time sensitive but that's not required. She's being fired because she can't do the job we need done, not because she became disabled.

Livelovelaughhope

Cindy interesting points, what is your work background, HR or administration?

Cindyl

I'm on a collage campus and am one of the people on the campus committee that works with admin, staff and students when we have an ADA issue come up.  Our goal is always to find an accommodation that will allow the staff member to keep their job (or the student to succeed in their classes) we usually manage to do it, but sometimes it just isn't possible.

camillegal

Thanks Cinci it kind of does make snense but again they should try to find another type of work for this reason, I'm sire they say there isn't one available.

Chickadee

This issue dovetails well with another thread on having SSDI denied after a 6 year review. We may qualify for it initially but must remember that it is not then guaranteed for life. It is tied to our continued inability to work due to disabling conditions. Thank heavens medical science is getting some of us to NED and the ability to lead something of a normal life.........but it creates financial havoc if in this economy we have little expectation of returning to or getting a job that pays as much if SSA finds us now able to work. Asking a new employer to understand our need for regular scans, Dr visits and new meds that make us gag is a bit much as they have lots of candidates without those problems. They will pass us right over.

Charitylake

I really do wonder what they were thinking. In metro Baltimore-DC there are more than a few very, very good employment law attorneys. And trust me on this, with that geographic proximity combined with interesting employment practices, it is no surprise there was a small settlement. Very interesting.

grayeyes

I know two other women with cancer who were fired from their jobs.  One had been with the company for 10 years, and she was fired two weeks before she passed away.  The reason:  they said she didn't call to report her absence.  (Unbelievable, isn't it?)  This was a company with a union, too; they claimed they didn't realize she was so ill.  But she'd been fighting cancer for years, so they had to have known...  In the end, she was so upset that she had been fired.

Mazy1959

Hey Ray...congrats on winning. Hugs, Mazy

NancyD

Life's wonderful...I wonder if another, more hidden, reason they fired her is so they didn't have to honor her life insurance, if she had it through them. Many large companies are "self-insured", both for health and life ins these days. Payouts come from their own pockets.

grayeyes

Hi, NancyD.  I would not be surprised at all by a company doing that.  I think she did have life insurance separately, though.  But, I agree, there must've been some kind of financial reason behind it...

P.S. (Congratulations to the woman who won her case!)

rayofsun

Bump

karirn

I have breast cancer and I was fired Tuesday. I also am a Registered Nurse but for hospice. I called in sick because I had nausea from my oral chemo. This is the only time I have ever called in sick. I did have planned surgeries but always back on time. Anyways, I was called in out of my bed to get fired. This company does insure their own. It is pittiful and happens way to often, if you ask me the above lady should have gotten triple that!

karirn

So let me get this straight, you are a cancer survivor and you thinks thats okay? Really???? Wait till they do it to you!

LisaMomOfFour

Not fired but told... 'you can't handle this job it's too stressful for you, let's call in HR'. (This was after I was done with treatment, and taking ONE DAY OFF for exchange surgery).   Called in HR and was then educated on the legality of his threat... so it turned into "well I need an engineer and you're a project manager, so please complete these engineering tasks in three days... your job is on the line".  I quit instead.  Lived off the retirement  savings before landing another gig.  An attorney told me I had a case, but I didn't pursue it.  

Cindyl

OK?  I don't think anyone said it's OK that someone gets fired because of a medical issue.  But what's "OK" and what's legal are often two different things.  In general, the questions that legally need to be asked are these:

1. Is the employer large enough  that the fall under FMLA guidelines.  If so the employee is entitled to 12 weeks of leave (either paid or unpaid) if they informed the employer the were requesting FMLA.  

2. If the employee has exceeded the 12 weeks of leave they are guaranteed they can be terminated.  

3. If the employee becomes disabled, that is the employee has a physical or mental problem that leaves them unable to perform all the tasks associated with a particular job the employer is required to work with the employee to find a reasonable accomodation that will allow the employee to continue to do their job. If not mutually satisfactory accomodation can be found, the employer can offer the employee a different job, that they can do (not sure if this is ADA or just our guidelines) if no such job opening exists the employee can be terminated.  

jill47

Has anyone not employed, gone through the interview process and offered a job while in treatment? At what point did you tell your prospective or new employer you needed time off to go to doctors appointments and/or take time off of work for surgery?  Before accepting the job or after you accepted? Please share your experiences with me, I may be in this position soon and I'm worried how to handle my situation. Does "resonable accomodation" include some flexibility in schedules that allows a person to go to doctors appointments? Thank you.

2miraclesmom

I applied for a sub position in the school district I am in. When I interviewed I had my scarf on (hair was just starting to grow back in). She didn't comment on it at all, though I am sure she knew something was up. After the interview was over were were talking and I mentioned it. She seemed fine with it. I did assure her it would not interfere with my work. I was hired. Now I still haven't actually worked yet. lol

jill47

thank you 2mireaclesmo...just reading the ADA website and an applicant who becomes an employee need not disclose her need for an accommodation for her disability prior to accepting the job.  Great info on their website;  they are addressing my concerns. If anyone still have a real world experience with this I'd like to hear about it.  

Cindyl

Jill.  The answer is... it all depends.  Certainly, a schedule modification to allow for doctors appointments could be a reasonable accommodation.  Or it could not be.  We must answer these questions:

1. What are the essential functions of the job?

2. Can the employee (prospective) employee perform those functions, either with or without an accommodation?

3. Will the proposed accommodation unduly impact the workplace and other people in it?

So, if one of the essential portions of the job is to be the one person who is at your desk answering the phone and greeting customers as they come through the door?  No. A flexible schedule may not be reasonable.  On the other hand if you spend 50% of your time as a receptionist, and 50% doing non-time sensitive paperwork? Yes a flexible schedule may be reasonable.  A teacher who needs to be in the classroom when the students are? No. A person who has most of their contact with the public via email, and tele-commutes? Maybe.

For instance, in our library we  4 staff members who are primarily responsible for the public service desks.  We are open 100 hours a week and need two people on duty at a time.  The single "essential duty" for these 4 people is to be here to cover their shifts and to provide service to the people who come through the door or who call on the phone.  We can and have accommodated "can't stand for long periods of time" and "need more frequent and longer breaks for nursing and breast milk pumping" and a multitude of other "can't lift" "need to come in late because of appointments" type situations...  But what we cannot accommodate is "I can't work at all this shift, or these days" and what's even worse is the "I don't know if I'll make it in because I may be throwing up"

When someone needs a truly flexible "I'll come in if I feel like it" schedule we have to say no.  You need the swing shift so you can do rads, not a problem, you want lots of weekends hours so you have days off during the week to see your MO? not a problem.  You want to shove two weekends together to have 3 days off in a row? we can do that...

Every work place is different though.  Good luck with your job search.

jill47

Thank you Cindy for taking the time to answer my question. In my field, going to a doctor appointment a few hours a week would not create an undue hardship on an employer and I'd be able to perform all the essential functions of the my job still.  I hope you are doing well in your recovery.