Can Your Employer Fire You While You Are on Chemotherapy?

Keeping your job can be a tricky balancing act when you are faced with a serious illness. This is particularly the case when you are undergoing a prolonged and difficult medical treatment such as chemotherapy. One question that may come to mind when undergoing chemotherapy is: Can an employer in California legally fire you (legally terminate your employment) while you are undergoing chemotherapy?

The short answer is: it depends.

Generally, your employer should not fire you while you are undergoing chemotherapy. That said, your employer may be able to legally fire you if the reason for firing you is wholly unrelated to you undergoing chemotherapy. What your employer cannotdo legally in California is fire you merely because you are undergoing chemotherapy or because you requested a leave of absence to undergo chemotherapy.

To explain this more fully, we must discuss the two essential legal protections for employees facing serious illnesses: the federal Family and Medical Leave Act (FMLA) [29 United States Code section 2601, et seq.], and the California Fair Employment and Housing Act (FEHA) [California Government Code sections 12900 – 12996].

The federal Family and Medical Leave Act (FMLA) applies to both employees who work in California and employees who work in states other than California. FMLA allows eligible employees to take up to 12 workweeks of unpaid, job-protected leave per year for specified family and medical reasons. This includes serious health conditions that require continuing treatment such as chemotherapy.

Not all employees are eligible under FMLA. To be an eligible employee under FMLA, you must satisfy certain requirements.

• You must have worked for your employer for at least 12 months, and you must have worked at least 1,250 hours for that employer during the 12 months before your FMLA leave started.
• You must have worked for a covered employer, which means a private employer with least 50 employees within 75 miles of your worksite, or a public agency or local educational agency regardless of the number of employees.

When undergoing chemotherapy, you will likely need time off from work—perhaps both to undergo treatment and to recover from the side effects of the treatment. Depending on your needs while undergoing chemotherapy, you, as an eligible employee under FMLA, can take one continuous period of leave or an intermittent or reduced schedule leave. After taking the leave of absence, you will have the right to return to your job or an equivalent job. Your employer cannot legally punish, suspend, fire, or otherwise discriminate against you because you requested or used FMLA leave.

If you are not an eligible employee under FMLA, then FMLA does not protect you from being legally fired for taking a leave of absence while undergoing chemotherapy.

If you have already taken 12 workweeks of FMLA leave within a 12-month period while undergoing chemotherapy, but you require additional leave within the same 12-month period, FMLA will not protect you from being legally fired if you take a leave of absence in excess of 12 workweeks.

FEHA applies only to employees who work in California. FEHA, through the California Family Rights Act (CFRA), allows eligible employees to take up to 12 workweeks of unpaid, job-protected leave per year for specified family and medical reasons. This includes serious health conditions that require continuing treatment such as chemotherapy.

More employees are eligible for CFRA than FMLA. To be an eligible employee under CFRA:

• You must have worked for an employer for at least 12 months, and you must have worked at least 1,250 hours for that employer during the 12 months before your CFRA leave started (the same as FMLA).
• You must have worked for a covered employer, which means a private employer with least 5 employees, or any California state and local government (not the same as FMLA).

As with FMLA, you, as an eligible employee under CFRA, can take one continuous period of leave or an intermittent or reduced schedule leave. After taking the leave of absence, you will have the right to return to your job or a comparable job. Your employer cannot legally punish, suspend, fire, or otherwise discriminate against you because you requested or used CFRA leave.

Under FMLA, if you remain on a leave of absence after exhausting your entitlement to FMLA leave, FMLA does not prevent your employer from legally firing you for failing to return to work.

Under FEHA, even if you do not qualify for CFRA or if you have exhausted your entitlement to CFRA leave, you may (depending on the exact circumstances of your situation) still be entitled to an unpaid, job-protected leave of absence while undergoing chemotherapy as a reasonable accommodation. If you are entitled to a leave of absence as a reasonable accommodation, your employer will not be able to legally fire you because you are taking time off to undergo chemotherapy. Examples of a reasonable accommodation might include not only a continuous leave of absence with a certain end date, but also a modified work schedule, or a temporary reassignment to a less strenuous position.

Advocate for yourself. You deserve to be able to work without fear of being discriminated against due to your health condition. Take time to learn about your rights and the legal protections available to you.

Communicate with your employer: Make your employer aware of your situation and discuss your need for time off or modifications to your work schedule or job duties.

Document: Keep a record of the communications you have with your employer concerning your illness. This will be a valuable source of evidence if your employer later violates your rights.Seek legal advice: If you believe your employer has violated your rights, an experienced employment lawyer can guide you on what steps you should take.

If you are experiencing discrimination due to a disability or a medical condition or because you are undergoing chemotherapy, contact the experienced disability discrimination attorneys at Kokozian Law Firm, APC at 323-857-5900, or Contact us via our online form. Our firm specializes in representing California workers. Ask about our free initial consultation. We advance all costs. No recovery, no fee.