Navigating Work after Transplant
Tuesday, April 20, 2021
Presenter: Joanna Fawzy Morales, Esq., Triage Cancer
Presentation is 39 minutes long plus 19 minutes of Q & A
Summary: Returning to work after transplant poses many challenges. Several Federal and state laws provide workers who are struggling with a serious illness, and in some cases, their family members, protection against job discrimination, guaranteed time off work to recover or care for a loved one, job security while off work, and/or money to help replace lost wages.
- The Americans with Disabilities Act (ADA) protects against job discrimination for people with disabilities and those with significant medical problems. It also requires certain employers to make reasonable modifications to the worksplace environment to enable those with ongoing medical issues to continue working.
- The Family Medical Leave Act is enables patients and their caregivers to take time off work in order to recover or care for a loved one who is ill.
- Triage Cancer is a national non-profit organization that provides free education on all legal and practical issues that may arise after a cancer diagnosis.
(03:27) Laws exist on both the federal and state level to protect patients from discrimination based on medical condition.
(04:32) Some employers provide additional employment benefits beyond those required by law.
(06:00) The Americans with Disabilities Act (ADA) provides protection for workers who have a medical disability but are still able to perform the essential functions of their job.
(08:15) The ADA also protects caregivers from discrimination in the workplace.
(08:36) The ADA applies to all phases of employment, including job applicants, and prohibits employers from taking your medical condition into consideration when making employment decisions.
(09:15) The ADA requires employers to make reasonable accommodations in the work environment for workers with a covered medical condition
(14:34) State fair employment laws are sometimes even better than the federal laws. They may cover smaller employers, and may mandate more time off and/or paid sick leave for patients and caregivers.
(16:55) The federal Family Medical Leave Act allows a person to take time off work for their own serious medical condition, or that of a spouse, child or parent. It provides unpaid leave but also offers job protection and health insurance protection.
(23:51) Disclosing medical conditions is a complex decision with pros and cons. It is required to access certain benefits but may jeopardize opportunities for future employment
(25:31) Disability insurance is another resource that may be privately acquired or provided by an employer. Many people are unaware of employer plans they already have, so check this out carefully. In some situations, caregivers may also be eligible for disability benefits.
(32:23) People with compromised immune systems may be eligible for some employments benefits, accommodations, or telecommuting. This is especially timely given concerns over COVID transmission.
Transcript of Presentation:
(00:02) [Marsha Seligman] Introduction. Hello everyone. My name is Marsha Seligman. Welcome to the workshop Navigating Work After Transplant. It is my pleasure to introduce today's speaker Ms. Joanna Morales.
Ms. Morales is a cancer rights attorney, author, speaker, and CEO of Triage Cancer, a national non-profit organization that provides education on practical and legal issues that may impact individuals coping with cancer. She has spent more than 25 years working on behalf of individuals with cancer and has presented nearly 1000 educational seminars on employment, insurance, healthcare, and health finances. Please join me in welcoming Ms. Morales.
(00:47) [Joanna Morales] Overview of talk and Triage Cancer resources. Thank you so much. So today I'll be talking about navigating work after transplant and some of the issues that come up for individuals. But I want to start by telling you a little bit about Triage Cancer and the resources that we provide so that you know where you can go for more information about some of the things that I'm going to talk about today.
(01:12) Triage Cancer is a national non-profit organization that provides free education on all of the legal and practical issues that may come up after a cancer diagnosis. And we do that through providing free educational events, materials, and resources. So we host a free Triage Cancer conference, which is actually coming up on May 15th, and we have a free monthly webinar series. On our website it's triagecancer.org. We provide state-specific resources and information on educational topics that can impact someone's financial situation, as well as many other topics like work.
(01:56) Our newest print material is actually our practical guide to cancer rights, navigating employment, insurance, and finances. And you can find this resource on our website and it provides a key overview of some of the things that we think are most relevant to anyone dealing with a serious medical condition.
(02:19) We also have a series of animated videos that cover some of the topics we think are most important for people to know. We know that health insurance and employment issues, and even estate planning topics are not the most exciting topics, but they are important things for people to understand. So we do have that animated video series and these videos are about five minutes long each.
(02:43) We also host a resource called CancerFinances.org, which provides education on topics that can impact someone's financial situation like employment. And then after you pick a topic, it starts to ask you questions based on your situation, and then it tailors the content based on how you answered those questions, so you get connected to the information that is most relevant to you.
(03:07) Now, if you need more assistance on an individual basis, you can contact our legal and financial navigation program to talk to one of our staff attorneys about potential issues that you might be experiencing or questions that you have, and you can fill out our contact form online.
(03:27) Laws governing employment rights protect patients from discrimination based on medical condition. So when we're talking about employment rights, they're actually a lot of places where you can go to look for that information. There are laws that we refer to as fair employment laws, which protect people from discrimination in the workplace based on their medical condition and give them access to reasonable accommodations. And fair employment laws exist at the federal level, but they also exist at the state level.
(03:53) Leave laws and employment contracts may also protect patient rights. And then there are laws that we refer to as leave laws, which allow you to take time off work and provide you with some job protection, and in some cases even health insurance protection. And again, those exist at the federal level like the family and medical leave act, but they also exist at the state level and even county and city level as well.
(04:16) And then sometimes we forget that we work under an employment contract. If you're a member of a union that union bargaining agreement can provide additional information about what employment rights and protections and benefits you have access to at work.
(04:32) Laws dictate bare minimum protections. Many employers offer enhanced benefits that are detailed in employee handbooks. And then we often forget that the law just provides a bare minimum of what employers have to do. There are so many employers that go above and beyond those minimum requirements, and when they're providing those employer specific policies, they're usually contained in some version of an employee handbook or manual or some type of policies and procedures document, that lays out what you have access to at work, things like, do you have health insurance or even a disability or life insurance policy? How do you take time off? Whether it be sick time or vacation time, can your coworkers donate their hours to you so you can take time off work? All of those things are going to be specific to your employer, and so finding out that information is a key step in figuring out what you have access to.
(05:24) The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees and state and local governments. Now starting with the Americans with Disabilities Act, the ADA is a federal law that many people are familiar with because there are accessible parking spots or restrooms or there's ramps into buildings. But there's an entire section of the ADA that just focuses on employment called Title I, and Title I applies to private employers with 15 or more employees or to state or local government employees. Federal employees also have access to these protections, but it's technically available under a different law.
(06:00) Who qualifies for ADA protection? So in order to use the ADA's protections, you have to be qualified, which means that you can perform the essential functions of the job, but you also have to have a disability under the ADA's definition of disability. And every law and program that we talk about actually has a different definition of disability just to make it super easy for us.
(06:21) So the ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. So there's a few parts to that. First, that you have a medical condition, the second is that it's having an impact on a major life activity, and the third is that that impact has to be substantial. It can't be minor or annoying or just happen once in a while, it has to be a substantial impact on a major life activity. And major life activities are major, breathing, eating, walking, talking, those are all considered major life activities.
(07:00) Amendments made the ADA more applicable to cancer patients. And in 2008 Congress actually amended the ADA and made it easier for someone with a cancer diagnosis or other serious medical conditions to actually use the ADA's protections. And they added things like concentrating, sleeping, and the operation of major bodily functions to the list of major life activities, and those are all things that are commonly substantially impacted by cancer diagnosis and treatment or transplant.
(07:30) How to use protections provided by the Americans with Disabilities Act. So once you've shown that you have worked for the right employer, you're qualified and that you have a disability under the ADA, there's four ways to actually use the ADA's protections. And the first is that you currently have a physical or mental impairment. The second is that you have a history of having that impairment, which is very useful if you're going back into the workforce, but are concerned about being treated differently based on your health history. And then the third is actually really not about you at all, it's about your employer's perception of you. So your employer is regarding you as having a disability and treating you differently because of that, but it's not really about your abilities at all, and that's enough for protection under the ADA.
(08:15) The ADA includes protection for caregivers. And then the last way is actually for caregivers. There is a line in the ADA that says people who associate with a person with a disability are protected against discrimination in the workplace. And so because caregivers associate with the person who they're caring for, they have access to those discrimination protections at work as well.
(08:36) The ADA covers all aspects of employment, including hiring. Now, the ADA applies to all phases of the employment process, which basically just means job applicants are protected in the same way that employees are. And ultimately the bottom line of the ADA is that an employer can't be taking into consideration your medical condition when making employment decisions, and employment decisions are things like hiring, firing, benefits, who's getting promoted, who's getting bonuses, pay structures, all of those things can't take into consideration your medical condition and you can't be treated differently because of it.
(09:15) ADA requires employers to make reasonable workplace accommodations to enable people with disabilities to continue working. Now, in addition to the protections against discrimination, the ADA also gives you access to reasonable accommodations. And reasonable accommodations are any change in the work environment or in the way things are customarily done, aka workplace policies that enable an individual with a disability to enjoy equal employment opportunities. So again, that's a mouthful and we're going to give you some examples of what accommodations could look like, but I want to stress that the legal definition says any change and that the law is rarely that broad. So by saying any change, that really means that everything's on the table as a possible reasonable accommodation. And then you have to think through what specifically is going to help me be able to continue to do my job or to return to work.
(10:12) Accommodations required by the ADA include workspace, scheduling, and many other issues. And when we're talking about someone who's been diagnosed with cancer, or who's having a transplant, generally speaking, accommodations fall in three buckets. And the first are accommodations to adjust workspace. And that might be something like working from home and telecommuting, or it might be working from another location. But most of the time accommodations that are most common are about schedule. And that could be having additional breaks during the day or having a more flexible schedule. But you can actually also take time off through extended leave as a reasonable accommodation under the ADA.
(10:54) And then the last category is really a catch all for everything else. You can use technology maybe as a reasonable accommodation, or change a workplace policy to allow you to be able to continue to do your job more effectively. Sometimes it might be shifting job responsibilities that aren't core to your job to somebody else. And what I often call it, accommodation of last resort, is potentially changing jobs where you can do that job if you aren't able to do your current job. But that doesn't necessarily mean that an employer has to create a new job for you. It really means that if there's an open position and you could move to that open position as a reasonable accommodation, that's a possibility.
(11:43) Reasonable accommodations are a right, not a “favor.” But there are some key things to understand about reasonable accommodations. A lot of times people feel like they're asking their employer for a favor when they ask for a reasonable accommodation, but it's actually something you're entitled to if you're eligible for protection under the ADA.
(12:00) So an employer has to accommodate you unless it's going to pose an undue hardship on the employer. But reasonable accommodations do have to be reasonable. So if you are an airline pilot, it's unlikely for you to be able to telecommute your job, and there might be some other aspects of your job you could do from home but flying the plane is not likely to be one of them until we have sort of arial manned planes in the air.
(12:31) Multiple, effective accommodations may be appropriate and they may change over time. So it does have to be reasonable based on your job responsibilities, but it also has to be effective for you. So if the employer offers you an accommodation that isn't effective for you to address those side effects that you might be experiencing at work, then it's not a reasonable accommodation.
(12:50) You also aren't just entitled to one. You might have multiple side effects from treatment where you need multiple accommodations and you are allowed to have more than one.
(13:01) Your needs might also change over time. So what you need today, when you start treatment might be totally different than what you need a month after going back to work. So accommodations can be adjusted over time as well.
(13:16) Reasonable accommodations for caregivers are not required but may be negotiable. Now, even though caregivers are protected against discrimination, caregivers are not entitled to reasonable accommodations. Even though you could probably think of lots of practical ways that would be helpful to caregivers, employers aren't required to give those accommodations under the law. But that doesn't necessarily mean that caregivers couldn't ask for accommodations, because at the end of the day employers really want to keep good employees. So it's worth talking to your employer and being proactive and talking through your needs and potential solutions that could be examples of reasonable accommodations. And it doesn't hurt to ask the employer because in a worst case scenario for caregivers, all they can do is say no.
(14:01) “Reasonable accommodations” are an underutilized tool. So we actually think that reasonable accommodations are one of the most underutilized tools that the law provides to help people, because most people aren't familiar with the way that the ADA works. And so we have a number of resources that are available to help people navigate accommodations from checklists to animated videos, and even one hour webinar on our website about how to manage side effects at work and at school. So those resources are available to you.
(14:34) State ADA laws may be even better than the federal law and cover smaller employers, and require better leave policies and paid sick leave. Now, I mentioned that there was the federal ADA, but there are also state fair employment laws that are very similar to the ADA. And sometimes those state laws are actually better and provide better protections than the ADA does. And one of the ways that it does is that by, it covers employers with fewer employees.
(14:56) So the ADA covers employers with 15 or more employees. This is a chart that shows you all the states that have state fair employment laws that cover employers with less than 15 employees. So, for example, if you're in Colorado, the state fair employment law only requires that you have two or more employees. So if you happen to work for an employer between two and 15 employees in Colorado, you're actually looking for protection from your state fair employment law, rather than the ADA, because the ADA isn't going to cover you if you're working for that smaller employer.
(15:35) So this is a good example of how it's very important to not just understand what's available to you at the federal level, but also to understand what's available to you in your specific state. And that's why we keep state specific information on our website and on our chart of state laws, so that you can find that information.
(15:55): Now, in addition to state fair employment laws, there are also state leave laws and sometimes even county and city level laws that give you the ability to take time off work and access some job protection. And so these laws are all over the place in terms of who they cover and why you could take time off work. So, for example, some states have state FMLA laws, which allow you to take time off for your own serious medical condition or as a caregiver and some state laws actually cover more family members. So you can look at a very broad definition of who's in your family as a caregiver.
(16:37) There are also laws at the state county and city level that gives you the ability to access paid sick leave. So we track this information and it is available on our chart of state laws so you can find what specifically available to you, where you live.
(16:55) The federal family medical leave act (FMLA) allows individuals with a serious medical issue to take time off work. It also allows caregiver for a spouse, child or parent to take time off work as well. So turning to the federal FMLA leave law. This is a federal law that allows you to take time off work for your own serious medical condition, or as a caregiver of a spouse, a parent, or a child with a serious medical condition. And that's a pretty limited definition of who you can care for. We're only talking about spouse, parent, or child, not parent-in-law or grandparent or siblings, it's just spouse, parent, or child.
(17:25) Now, in order to use the FMLA, you have to meet some requirements. And the first is that you work for a large enough employer. So the FMLA requires that you work for a private employer with 50 or more employees, or you work for a local state or federal government. You also have to have worked for the employer for at least 12 months and worked 1,250 hours in the last 12 months you worked for the employer. So this is where we start to get into the weeds a little bit to figure out if you actually qualify for leave.
(18:00) The 12 month requirement doesn't have to be consecutive, it doesn't have to be 12 months in a row, and there are many people who work in industries where people come and go working for an employer. So maybe you worked for an employer for seven months, you've left for three years, and then you come back and work for the employer for five months. At the end of those five months, you'd actually be eligible for FMLA leave because you get to add up the previous seven months you worked for the employer. But you do also have to work 1,250 hours in the last year you worked for the employer. And that comes out to be 24 hours a week, if you worked all 52 weeks during the year.
(18:49) FMLA guarantees 12 weeks of unpaid leave from work per year, and protects your job and health insurance while you are on leave. So, what does the FMLA actually do for you? It gives you 12 weeks of leave per year. So every 12 months you have access to 12 weeks of leave. The downside is that that's unpaid leave and most people who qualify for the FMLA don't take it because they can't afford to not having any income coming in for those 12 weeks. But it does provide job protection and it provides health insurance protection. If you get your health insurance coverage through your employer, that has to continue for the period that you're taking time off work. And if your employer pays the premium or a portion of the premium for your health insurance, they have to continue to do that during FMLA leave as well.
(19:37) Now it's important to know that if you're just taking a sick day or a vacation day, that's just about replacing lost wages, it's not about job protection. So the FMLA actually provides some job protection where a normal sick day, or even going out on disability insurance doesn't provide job protection by itself.
(20:01) So again, the FMLA is one of those topics where we have a number of resources on because it's a very important topic not only for individuals diagnosed with cancer and serious medical conditions, but also caregivers. And we have quick guides, animated videos, and webinars, to learn more about this topic.
(20:23) You do not need to take all 12 weeks of leave ,allowed under the FMLA, all at one time. But there are some key things that I want to share with you now. The first is that the FMLA is very flexible. So you don't have to take all 12 weeks at once, you can use it in smaller segments of time. So you might have a couple of weeks off for treatment and then if you're going back to work, then you might have follow up medical appointments, and those happen once every two weeks. So you can take those individual days off as FMLA time, or even if you just have a two hour follow-up appointment that could be taken as FMLA time as well. So you can use it in smaller segments of time. It can be also used intermittently, meaning that you can take it as you need it, for example, on a day, you're not feeling well, you could take that day off as FMLA time.
(21:20) We've been hearing more and more examples of where employers are requiring their employees to use their vacation time and sick time before getting access to FMLA protection. And that's actually not allowed. They have to give you access to the FMLA protections if you are eligible for them, but that's different than saying an employer can require you to take FMLA time concurrently with vacation time or sick time. So you're using those two things at the same time, so that the FMLA is providing the job protection and the health insurance protection where your vacation time or sick time, or just general paid time off is paying you for that period of time. But if your employer doesn't require you to use them at the same time and that's what you want to do, then you can actually request that and the employer has to give that to you.
(22:23) The ADA, FMLA and state laws can all work together if people know all their rights. So we often talk about these issues like they're puzzle pieces and all of these laws and benefits and programs are individual puzzle pieces. And depending on what puzzle pieces someone has access to based on the state that they live in, or the laws or the employer policies they have access to, everybody's puzzle is going to look a little bit different, and this is an example of where those puzzle pieces start to fit together.
(22:50) So the ADA can actually work with the FMLA in that if someone has exhausted their FMLA leave, they can actually ask for additional time off as a reasonable accommodation under the ADA. But the ADA can also be used instead of the FMLA for taking time off work, because if someone doesn't qualify for FMLA protection because they worked for an employer that's too small, or they haven't worked their 12 months yet, or they haven't worked for 1,250 hours, they could still potentially get access to taking time off work as a reasonable accommodation under the ADA.
(23:33) So again, it's an example of why not just knowing one law or not just knowing the federal law instead of knowing the state law and the federal law is an example of how you don't know all of your rights, you don't know how to take the best path forward to get access to what you need.
(23:51) Disclosing a medical condition to an employer is a complex decision with pros and cons. Now, we often hear from people, do I have to tell my employer, my potential employer about my medical condition, and generally you are not required as an employee to share information about your medical condition with an employer. However, if you want to access protections under the ADA, you have to share some information about your medical condition because you can't claim that you're being discriminated against based on your medical condition if they don't know about your medical condition. So it does create a bit of a catch-22 for people where you have to share some information in order to tap into the protections.
(24:28) You may also need to share some information about your medical condition to access reasonable accommodations or medical leave as well. And disclosure is a very personal decision for everyone and everyone feels very differently about who they want to disclose to, when and how much to share, and so we have created some resources to help people think through their disclosure decisions, because we just want people to make conscious decisions and be comfortable with them.
(25:00) Because ultimately disclosure could potentially have an impact on your employment situation, but potentially in other aspects of your life. And while right now you might have an employer who is very supportive and has told you don't worry about it and you feel comfortable in making that decision, in the future you might not want a potential employer to learn about your medical condition. So we have a lot of resources related to disclosure.
(25:31) Disability insurance provides people with paid time off if the person needs to take time off from work due to a medical condition. Now, turning to disability insurance, disability insurance is the type of insurance coverage that provides you reimbursement for some lost wages if you have to take time off because of your medical condition. And there are different types of disability insurance.
(25:49) So private disability insurance is a policy that you can buy directly from an insurance company, or it's something that you get access to as part of your employee benefits. And most people don't go and buy a policy directly from the insurance company because most people don't think about disability insurance as part of their needs. But many people have access to a policy through their employer and it could be potentially a short-term policy or a long-term policy. Short-term plans typically last up to a year whereas long-term disability policies are typically for medical conditions that last a year or longer.
(26:32) And I can't tell you the number of people who told me, "Oh, I don't have access to that at work," and I sent them back to their employee manual to double check, and it turns out that they did have a plan because it was just a piece of paper they signed on their first day of work and they forgot all about it because the employer paid the premiums, and so it just wasn't top of mind. So if you are in a situation where you're looking to see if you have disability insurance coverage, it's definitely a good idea to check at work.
(27:01) There are also a handful of states, and by that I mean just five and Puerto Rico, that provides state disability insurance, where you pay into the system through your payroll taxes. And I've included on the slide, just an example of California State Disability Insurance Plan. But we have details on our state resources page, as well as a quick guide to state disability insurance, which includes the highlights of these state specific programs.
(27:32) State disability programs are short term; federal programs are longer but have high disability standards. All of the state programs for disability insurance are short-term plans where they last six months to a year, which is different than the two federal disability insurance programs that are run through the Social Security Administration. These plans are Social Security Disability Insurance, which is SSDI and Supplemental Security Income, which is SSI. And as I mentioned, both of these programs are run through the Social Security Administration and they both have the same, very high standard of disability. It's actually the highest standard of disability in all the laws and programs that we talk about, because they will only provide benefits to individuals who have a medical condition that is expected to last at least a year or longer, and that that medical condition is keeping someone from being able to do their job, but really not just the job they have right now, really any job that they've had for the last 15 years. So it is a high expectation that someone's medical condition is keeping them from being able to work.
(28:45) And so we do have a large number of resources related to disability insurance to help people figure out what their options are and what they qualify for, but also some tricks on how to navigate the disability insurance system so that you can get your application approved, and if it is denied how to get through the appeals process as well. And so, again, these are some of the resources we have related to disability insurance.
(29:15) Caregivers may be eligible for benefits including paid leave. Now for individuals who are caregivers and are taking time off work because they are being a caregiver, there are some limited options to replace any wages that caregivers have lost because of the need to take time off work. So again, there are a handful of states that actually provide state paid leave for caregivers including California, and states are constantly passing new laws to provide these protections because they recognize that there is a very practical need for caregivers to get access to paid leave. So these programs are available, the information's available on our state resources page, but there is also a state Medicaid program where it's an optional benefit. So it's not necessarily available in every state, but if someone qualifies for Medicaid, this program will cover the cost of providing in-home support services, if someone needs those services. And that can be things like help with activities of daily living, or it can be things like grocery shopping or home cleaning.
(30:31) But caregivers could be a paid caregiver that you find through a company and the state Medicaid program would pay for that caregiver. But in some states, those caregivers can also be family members. So your family members could actually get paid as caregivers for caring for you which they probably would have done anyway. So this can be a useful resource to bring in some income and offset those lost wages for anyone who needs to take time off work as a caregiver, and the details of these programs and the contact information is on our state resources page and on our chart of state laws. We also have a number of resources for caregivers that explain their employment rights and access to other benefits and support services. So with that, I'm going to turn it over for questions.
Question and Answer Period
(31:29) [Marsha Seligman] Q & A. Thank you, Ms. Morales for this excellent presentation, we will now take questions. And as a reminder, if you have a question, please type it into the chat box on the lower left-hand corner of your screen.
(31:41) [Marsha Seligman] The first question is, I've been working remotely during the pandemic, but our company is now bringing all workers back to the office. They require a doctor's note to allow continued work from home. I've presented my note stating I should remain working from home indefinitely due to being at high risk for infection. However, my employer is still making me return to the office next month. No further accommodations will be made in the office to reduce contact with others or prevent transmission of sickness other than mask being worn for the time being due to COVID. Is this an ADA violation and what can I do?
(32:23) [Joanna Morales] People with compromised immune systems may be eligible for some employments benefit, accommodations, or telecommuting. So this is actually a pretty common situation right now, related to COVID. And interestingly enough, the U.S. Department of Labor about a month ago, maybe six weeks ago now, released some new guidance that said, were someone who is concerned about their compromised immune system and their health and exposure to COVID, that could actually be a reason to decline work and to access unemployment benefits. So normally in order for someone to access unemployment benefits, you have to be let go from your job as opposed to quitting or choosing not to work there anymore. And so that's some pretty interesting guidance because it makes sure that people with compromised immune systems, like people in the cancer community, can protect themselves, but tap into some of the employment benefits that are out there.
(33:26) For someone who wants to stay at their job and access reasonable accommodations, like potentially working from home or working from a location maybe with less people so there's less potential for exposure, that could be a reasonable accommodation, but whether or not it's reasonable is going to be based on your job responsibilities and not the details of that particular workplace. But it's unlikely that an employer could argue it's an undue hardship on the employer if you've been working from home over the last year, because lots of employers have found that their employees can work from home and they've made adjustments to the work flow and the workplace to make sure that that can happen. So it makes it easier to argue that that's a potential reasonable accommodation. So if you have questions about a particular request for an accommodation, a very useful resource is the Job Accommodation Network and their website is AskJAN, so A-S-K-J-A-N, .org. And they are actually a program of the U.S. Department of Labor where their whole purpose is to help employers and employees navigate the accommodations process.
(34:48) And so oftentimes when I'm talking to someone about asking for an accommodation and the employer is pushing back, sometimes it's a good idea to talk to Jan on your own, but you also could go to your employer and say, "I have some questions about accommodations and I learned about this resource and maybe we could call them together and pose some questions to them and see what the possibilities are."
(35:16) All of that said is that there are some very interesting cases right now of where employers have not been accommodating their employees and their requests to telecommute as accommodations, and we are anxiously waiting to see the outcomes in those cases that we think that they will be supportive of employees who have been working from home and are requesting to continue working from home.
(35:47) [Marsha Seligman] Okay. The next question is, can an employee be fired from their job while on long-term disability?
(35:56) [Joanna Morales] Well, the short answer to that is yes, theoretically, but it depends on your specific employer policies. Going out on disability by itself does not protect your job. Disability insurance is just about replacing lost wages. So that's why it's important to understand some of those other protections that exist. So, for example, if you are going to take three months off of work and you're going to tap into your disability insurance policy for those three months, you might also want to tap into the FMLA for those three months because that's what provides job protection and that provides the health insurance protection for those three months.
(36:39) If you need to take off additional time beyond that, at that point the FMLA might not protect you anymore and you can still use your disability insurance, but at least for those first three months you would have access to that job protection.
(36:54) Now, the other example of where you might have job protection if you are going out on disability leave is that you work for an employer that has a specific policy that says, we will hold your job for you for X period of time, if you go out on disability insurance. And so that's a great example of why you need to understand what the law says, plus what your employer specific policies say to figure out what you have access to.
(37:24) [Marsha Seligman ] Okay. The next question is, if you live in one state and work in another, which state fair employment law should I use?
(37:33) [Joanna Morales] Well, that is an excellent question. And the answer is it depends. So generally speaking, it is going to be the law that is actually most favorable to the employee, but it is not a clear cut answer that I could answer for you today, I would need to know a lot more details about your employer and which states we're talking about in order to be able to answer that question for you.
(38:02) [Marsha Seligman] Okay. The next question is, I have been out of work from a BMT for 14 months, how do I navigate returning to a fast-paced work environment?
(38:13) [Joanna Morales] That's a good question. So I think you have to first assess your skills and your capacity. And sometimes you can only do that by actually trying to go back to work, but understanding how reasonable accommodations can help you ease into the workplace might be very useful to you. So it might be about asking for accommodations for reduced workload for a period of time, or extensions on deadlines so that you have additional time to complete assignments, those are all things that could be potential accommodations.
(38:58) I would also mention with the Job Accommodation Network, they have a very useful tool on their website where you pick a medical condition, and then it starts to talk about different side effects that you might be experiencing from treatment for that medical condition, and then it gives examples of accommodations that could address those side effects so that you can start to get some ideas about, if I'm in this type of work environment and these are my side effects, these are potential reasonable accommodations that could help me. So it doesn't have every combination under the sun, but it is a useful way to start to think about what's actually posing the greatest challenge for me at work, and then what is the thing that could potentially help me address those challenges?
(39:51) [Marsha Seligman] Okay. The next question is, the FMLA doesn't come close to covering the leave period necessary by a BMT patient. Is there any way to protect one's job over a six to nine month period?
(40:07) [Joanna Morales] Well, I would certainly agree that the FMLA is not adequate for many needs of patients, but it is limited. So if you need six to nine months off of work, there are a few options and how you can piece meal that protection together. So it potentially could be a situation where you tap into the FMLA and then you ask for additional time off as a reasonable accommodation and/or your accessing disability insurance leave. And that's why also understanding your employer's policy about, if you're taking disability insurance leave, do they hold your job for you for any period of time beyond the FMLA? But there isn't a perfect answer that applies to everyone unfortunately in the United States, so it's tapping into the laws and benefits that you have access to to extend your coverage for as long as possible.
(41:05) [Marsha Seligman] Okay. The next question is, can you go back to work part-time and still get Social Security disability, or is that all or none?
(41:14) [Joanna Morales] After you've been receiving SSDI or Supplemental Security Income return to work, they actually want to encourage people to get back into the workforce. And so they have a number of programs that are referred to as work incentives, which help people try to get back to work. So they have everything from vocational rehabilitation, resume review services and career coaching to a trial return to work period. And that trial return to work period allows you to work for a total of nine months out of a five-year period of time, so that you can try to get back into the workforce and assess your capacity and see if you're ready, but still keeping access to your cash benefits and keeping access to any health insurance coverage that you're getting connected to your disability insurance, whether it be Medicare or Medicaid. And so that trial return to work period is really set up to help people try to see if they can get back to work, and you're able to earn income from where you're working.
(42:31) [Marsha Seligman] Okay. The next question is, doesn't Medicaid require for a very low income? So how would a caregiver get paid?
(42:43) [Joanna Morales] Okay. So thank you for the clarifying question. So Medicaid is the health insurance program that is available for individuals who have a low income level, and then in some cases also have a low resource level like your assets, and you have to meet some other category of eligibility. The In-Home Support Services program that is a Medicaid program, is if the individual who has the medical condition qualifies for Medicaid in their state, then they might also get access to In-Home Support Services, which could pay their family member as a caregiver, so it doesn't impact the income of the individual who is on Medicaid. So hopefully that answers your question, but we do have a great deal more information on these topics on our website as well.
(43:40) [Marsha Seligman] Okay. The next question is, I had to stop working about 10 years ago due to my illnesses. I hope to eventually start looking for work again, utilizing a recruiter. Should I explain to the recruiter exactly why I was out and should I limit how much they can tell to potential employers?
(44:01) [Joanna Morales] Okay. So I think that you should definitely take some time and think about how much information you would want to share with a potential employer about your medical condition. And I would definitely encourage you to look at the disclosure webinar on our website and also our quick guide to disclosure privacy and medical certification forms, because it lays out some of the things to think about and how to make some choices and then some tools on what protects you. In case you are applying for a new job, you do not need to share information about your medical condition, unless you feel like that is very relevant to you applying for that position. But I would say that it is all about timing.
(44:56) If you, for example, and this happens quite a bit with our organization and I know with others in the cancer community, if you are applying to an organization that supports transplant survivors, for example, sharing that you've had a transplant may seem very relevant to that position and give you some insight and experience and trying to help others, and so there's some real pros to sharing that information, but it does not necessarily be information you would share in your resume or a cover letter, or maybe even in the first interview, because that's not relevant to whether or not you can do the job.
(45:37) When you're applying for a job you need to focus on your skills and your experience that make you the best candidate for that particular job. Sometimes unfortunately there's data that shows that people are discriminated against, based on their medical condition in the job application process. And so it's important to keep that in mind that you want to be the best possible candidate that you can be on paper before you've even gotten a chance to talk to somebody.
(46:10) [Marsha Seligman] Okay. The next question is, is your employer obligated to continue paying your health insurance premiums while on FMLA? Or are they allowed to ask patients to pay for the premium during that time?
(46:24) [Joanna Morales] Yeah. So as I mentioned, the FMLA provides job protection and then it also provides health insurance protection if you've got your health insurance coverage through your employer. And so if you have an employer that pays a hundred percent of your health insurance premium, they have to continue paying a hundred percent during the time you're on FMLA. If they normally pay 75% and you pay 25%, that has to continue for the time that you're on FMLA.
(46:56) [Marsha Seligman] Okay. The next question is, a family member stopped work to serve as my caregiver. I was unaware of programs to get her paid for this help. What steps can we take to engage these resources for her?
(47:11) [Joanna Morales] So if you happen to be in a state that has state paid leave, it's actually pretty easy. You can just go to that state website and apply for the program. And you can also retroactively date it to the date that that person took time off work. If it is the in-home support services, then that would be applying through Medicaid as quickly as possible to get access to that benefit.
(47:41) [Marsha Seligman] Okay. Could you explain Social Security disability work trial program?
(47:49) [Joanna Morales] Sure. I think that that's similar to a question that came up earlier about being able to work part-time and still get access to disability benefits. So that trial return to work period for Social Security disability benefits is nine months where you can work out of a five-year period of time. And that information is on the Social Security website at ssa.gov, and the overarching programs that provide those services are called work incentives.
(48:33) [Marsha Seligman] Okay. I now have an assistant at work. I suspect that they are being trained to take over my job. What are my options approach my employer?
(48:47) [Joanna Morales] Well, I think that depends on what you want to find out from your employer. So if you want confirmation, if they're going to take over your job you could pose that question directly, and you may or may not get a truthful answer out of your employer. But if it's more of what your options are to improve your performance at work or in their eyes, then I think thinking through how reasonable accommodations might help, but also the question is, do they even know about your medical condition? So maybe if they don't, you would want to share something about your medical condition and tap into reasonable accommodations so that you do get access to some of those discrimination protections under the ADA.
(49:39) People often ask, well, when should I ask for a reasonable accommodation? And at the end of the day, you should ask for reasonable accommodation, as soon as you realize that you need one, because if you're struggling at work and it starts to impact your performance, and your employer only knows that your performance is suffering, but they don't know that you have a medical condition or could potentially be eligible for accommodations, then they can make decisions based on your job performance. And so that's why we want people to understand their rights, know how accommodations work and that they could tap into those accommodations to help them.
(50:21) [Marsha Seligman] Okay. Excellent Joanna, thank you so much for all of your help with these questions. On behalf of BMT InfoNet and our partners, thank you, Ms. Morales for your very helpful remarks and thank you, the audience for your excellent questions.
(50:37) [Joanna Morales] Thank you.This article is in these categories: