Surviving The Workplace While Surviving Cancer

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When addressing any major ailment, maintaining one\'s employment is really tough. It\'s also usually critical. This program, presented at the Pennsylvania Breast Cancer Coalition\'s annual conference, explains and offers a host of best practices in making it through the process of illness as well as treatment and leave from the workplace.

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Surviving The Workplace While Surviving Cancer

  1. 1. (c) 2012 Deirdre Kamber Todd KG LBUSINESS LAW EMPLOYMENT LAW SOCIAL MEDIA LAW HIPAA INTERNET LAW DISCRIMINATION UNEMPLOYMEN T COMPENSATIONCONTRACTS HOME HEALTHCARE ADVANCED DIRECTIVES CEMETERY LAWTHE KAMBER LAW GROUP A ProfessionalCorporation The Law At Work. 1275 GLENLIVET DRIVE , SUITE 100 ALLENTOWN , PENNSYLVANIA 18106 TEL: 484.224.3059 | FAX: 484.224.2999 INFO@KAMBERLAWGROUP.COM www.KamberLawGroup.com Find Us on 1
  2. 2. Surviving Breast Cancer in the Workplace:Protecting Your Job While MaintainingWorkplace Relations During Treatment Deirdre Kamber Todd, Esq. DKamberTodd@KamberLawGroup.com (c) 2012 Deirdre Kamber Todd 2
  3. 3. Deirdre Kamber Todd, Esq.Areas of Practice:• Employment and Business Law• Social Media/Internet• HIPAA• Contracts• Unemployment CompensationAdmitted: Pennsylvania, New York and U.S. Supreme CourtExpert Witness: Social Media, Lehigh County Court Deirdre Kamber DeirdreJKamber Kamber Law Group P.C. @DKamberTodd (c) 2012 Deirdre Kamber Todd 3
  4. 4. HIPAA3
  5. 5. TYPES OF LEAVES (c) 2012 Deirdre Kamber Todd 5
  6. 6. Leaves in the Workplace • Sick leave • Workers’ Compensation • Annual leave • Military leave • Vacation • Family and Medical • PTO Leave Act (FMLA) • Holidays • HIPAA • Disability Leave • Healthy Families Act… • Americans with Disabilities Act (ADA) • Etc., etc., etc.,….6
  7. 7. SICK LEAVE (c) 2012 Deirdre Kamber Todd 7
  8. 8. Sick Leave and PTO • Annual, Vacation, Sick Leave, Paid Disability Leave – Granted by Employer – Optional – HR vs. Legal • HOWEVER, what’s going to happen with Obama’s plan?........7
  9. 9. FMLADeirdre J. Kamber, Esq. 9
  10. 10. FMLA • What is the Family Medical Leave Act (FMLA)? – A federal law that entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave within a 12-month period for specified family and medical reasons. – NDAA amended FMLA to grant 26 weeks to military service members under certain circumstances13
  11. 11. FMLA • Employers must grant up to 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: – The birth and care of the newborn child of the employee – Placement with the employee of a son or daughter for adoption or foster care – To care for an immediate family member (spouse, child, or parent) with a serious health condition, or – To take medical leave when the employee is unable to work because of a serious health condition13
  12. 12. FMLA • Upon return from FMLA leave, an employee must be restored to the his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. – Key Employee Exception – Temporary Employee Exception – Doesn’t fit the definition of one year, 1,250 hours, etc…. • What about retaliation? • How does FMLA interact with ADA?13
  13. 13. ADA and ADAAA Deirdre J. Kamber, Esq. 13
  14. 14. ADA and ADAAA • The ADA prohibits discrimination based on a disability which impacts on a major life function. • The ADAAA, passed in 2009, seriously changed the face of the ADA. • Law requires covered employers to provide “reasonable accommodations” to the known disabilities of qualified individuals to remove workplace barriers. • LEAVE AS A “REASONABLE ACCOMMODATION”? – And, if yes, how long? Wasn’t the point to keep people at work?13
  15. 15. ADA and ADAAA: Reasonable Accommodation • Because these are part of the list of what may constitute a “reasonable accommodation,” • YES, VIRGINIA, being OUT ON LEAVE is an accommodation… – Job restructuring – Modifying work schedules – EEOC Guidelines on ADA13
  16. 16. ADA and ADAAA: Reasonable Accommodation • Leave is considered a reasonable accommodation. • Must engage in the interactive process. • Must be for a reasonable period of time. • Must be for a reasonable ascertainable period of time (how long is the person going to be out?) • So, if you accommodate someone by having them out of work, what is a reasonable time frame? • What happens with FMLA? Do you tack it on? Does it mix in the middle? What about sick leave? • Do you have to keep them employed?13
  17. 17. Funky Specifics • ADA leave + FMLA leave = – Are the leaves tacked/added together for the same condition? – No.33
  18. 18. Funky Specifics • FMLA + HIPAA = – FMLA leave and HIPAA privacy: • If an employee is unable or unwilling to return the completed FMLA certification, HIPAA prohibits a healthcare provider from sending the completed FMLA certification directly to the employer if the certification contains patient PHI.33
  19. 19. BEST PRACTICES (c) 2012 Deirdre Kamber Todd 19
  20. 20. Best Practices • Try to work with your employer • Abide by all reporting requirements unless illegal • You may not know everything going on either • Don’t be harassed • Try to get to healthcare practitioners regularly • HIPAA authorizations • Be honest, to a point • No MD notes “she can’t come to work because she’s sick”….. • You need a definitive return to work date33
  21. 21. Best Practices • If you are harassed or retaliated, call a lawyer immediately – don’t go through it alone • Be aware of statute of limitations • Know your policies and follow them • Wear the white hat • Keep a diary • Tell others • Don’t abuse your workplace or time off • Keep all documents, including social media/texts/emails/FB, etc. • Know that 12 weeks means 12 weeks33
  22. 22. Questions? Comments?The Kamber Law Group, P.C. Deirdre Kamber Todd, Esq.DKamberTodd@KamberLawGroup.com 1275 Glenlivet Drive, Suite 100 Allentown, PA 18106 Tel: 484.224.3059  Fax: 484.224.2999 (c) 2012 Deirdre Kamber Todd 22

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