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Thread: Chemo, fired, California California

  1. #1
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    Question Chemo, fired, California California

    My niece is a vet tech and has had a bad year. She is close to completing chemo and still has the port in her chest so she's not officially done. She's improved but won't be considered in remission for another few months. Last week her employer fired her over some vague time card discrepancies. She believes she was fired after other employees started to complain about accommodations made for her. She has a young son and really needs income. Plus now she will lose her health insurance she so desperately needs. I have two questions.

    1) In a situation where the stated reason by the employer, and what you believe is the real reason are in conflict, what do you put on the unemployment insurance application as the reason for termination?

    2) When the stated reason is not what she thinks the real reason is, and the real reason is because of her disability, what steps (if any) should she take to document the real reason?

    Thanks, in advance for your help. She is sick and confused, scared etc., otherwise maybe her head would be clear enough to be her own advocate here and elsewhere.

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    Before I answer your questions, I have a couple for you, as it may make a difference how I advise you.

    1.) How long has your niece worked for this employer?
    2.) How many employees does the employer have?
    3.) In the last 12 months, how much time has she missed due to her illness?
    4.) What accommodations have been made for her and how much longer is she likely to need them?

    I'm going somewhere specific with this. It won't affect the answer to question 1 but it might affect the answer to question 2.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by cbg View Post
    Before I answer your questions, I have a couple for you, as it may make a difference how I advise you.

    1.) How long has your niece worked for this employer?
    2.) How many employees does the employer have?
    3.) In the last 12 months, how much time has she missed due to her illness?
    4.) What accommodations have been made for her and how much longer is she likely to need them?

    I'm going somewhere specific with this. It won't affect the answer to question 1 but it might affect the answer to question 2.
    Answers:

    1) 1 year and two weeks
    2) 33
    3) 3.3
    4) schedule flexibility -- this was a 24 hour clinic. They also changed her job from tech to reception to reduce her exposure to sick animals, but neither she nor her doctor stated the necessity for this kind of accommodation.

    Thanks for your interest and I look forward to your thoughts.

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    3.3 what? Days? Weeks? Months?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by cbg View Post
    3.3 what? Days? Weeks? Months?
    Sorry, days.

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    1.) If she is answering a paper or online questionnaire, she should stick to the reason she was given but if there is a place for her to add comments or notes, she should provide her own comments. If she is applying over the phone, she should say something like, "I was told it was for x, but I think an additional reason may have been y". Not that the reason she was given isn't a real reason, but that she believes there was an additional reason that was not provided to her.

    2.) This is a much tougher question. Some of the answers you gave me are what I expected, but one of them was not, and it's making it more difficult to respond. Since there were fewer than 50 employees (which is what I expected) FMLA does not apply, which means she had no protected sick leave available to her. But I expected to hear that she had missed more time than three and a half days.

    You didn't respond to how much longer she was expected to need accommodations?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by cbg View Post
    ...You didn't respond to how much longer she was expected to need accommodations?
    She never expected or wanted the job change to reception. So she doesn't need or want that accommodation any further. For schedule flexibility, she is done for now with chemo bit if tests come back that she needs another round, it is possible she would ask for that. But for right now she doesn't need any further accommodations.

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    I don't think it would do her any harm to run her situation past an employment law attorney.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by cbg View Post
    I don't think it would do her any harm to run her situation past an employment law attorney.
    I will tell her what you said. If there are any more thoughts I'd love to see them. :-)

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    This post (thread) is kind of "hard" to give a definite answer. I agree that running it by an employment law attorney might be the best bet/option.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    We have a few members who are a bit more current on the ADA than I am. I do primarily Benefits now and my HR is getting a bit rusty. You may get some more comments from some of the other regulars but it might be Monday before they see this.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    & I'm not a HR person & haven't worked with any actual ADA situations.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    Quote Originally Posted by Betty3 View Post
    & I'm not a HR person & haven't worked with any actual ADA situations.
    So this is probably an ADA issue?

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    I have dealt with ADA extensively. Cancer would qualify as a disability but it is unclear what you mean by "schedule flexibility". Employers are required to offer reasonable accommodations which would allow the employee to continue working. It is impossible to say whether what she asked for was reasonable. A transfer to another position in order to better accommodate scheduling needs can be reasonable. Time off for treatment can be but it far from automatic and as her employer is so small, there is no amount of guaranteed leave she must be permitted. Either way, it sounds like they did accommodate.

    If she is finished with treatment and no longer needs any sort of accommodation, it is really going to be an uphill battle to prove the employer fired her in retaliation for asking for an accommodation they granted and which she no longer needs. Time card discrepancies are a legal reason to fire her and ADA will not protect her from that or any other reason unrelated to her disability. If she has some solid reason other than suspicion to believe her employer is retaliating against her after the fact, then she should talk to a lawyer and lay out ALL the facts.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Thanks, Elle. I agree that they accommodated her. It's a 24 hour clinic. What I mean by "schedule flexibility" is that they let her work different start and end times, and sometimes a split shift, depending on her chemo and Drs appointments. Thats why she missed very few days of work due to her illness. The schedule fluctuations weren't random. I.e., she didn't call in and expect the day off immediately. She knew her treatment schedule and they massaged her work schedule around it.

    She said they were very vague about the time card discrepancies. Their procedure was to have employees fill it out at the end of the week. Given that, and chemo side effects it's possible she made errors -- probably not always to her advantage. I don't know for a fact one way or the other. I just know what they said and that they didn't give her any documentation to show her where the problem was. Not that they have to, but it does seem odd to me that they would make an accusation that serious, without showing something to back it up.

    Her oncologist wants to leave that chemo port in her chest until the labs show an all-clear. While she is optimistic that she's in remission, she didn't claim to be well now. Nobody can be sure at this point. It is possible that she will need more accommodation. Also, apparently the employer decided on their own, not to let her work in the back, because of the port and concern that something bad could get in it. However her doctors were not concerned about that, since she practices good hygiene and maintenance of it. So I wouldn't call the position change an accommodation.

    Any further thoughts I'd love to hear, and thanks to all for taking time out of your day to help.

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    Port in or out is legally meaningless. What may happen in the future is as well unless her employer has made very specific comments about this. Even if "chemo brain" is to blame for her mistakes, that doesn't legally change anything. It would be nice if her employer gave her the details but they aren't legally obligated to and there are some very good reasons for not doing so from an employer's perspective.

    Unless he suffered some sort of negative result of being reassigned, it isn't legally actionable though it is odd.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    I think that she mentioned the port et al because the employer hasn't been led to believe that her treatment is definitely over. They probably expected or at least knew of a distinct possibility of more schedule accommodations.

    I've seen some really good people get canned over employee jealousy before... Some bosses preferring peace and being too wimpy to tell the whiners to mind their own business. It wouldn't surprise me if they decided they'd had it with other employees complaining about the appearance of preferential treatment when they thought her problems were a PITA anyway.

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    Does she know for fact that others have complained about her accommodations? Even still, it would be highly fact specific whether those complaints have any meaning at all. If the accommodation is causing a problem for others, it is valid and justifiable for her coworkers to point this out to management. Accommodations are not sacred and must be reasonable. If it negatively impacts her coworkers it would not be reasonable. As her current need for accommodation is now over, it just doesn't make sense that she would be fired even if her coworkers were upset about a no longer needed situation.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    I will just point out here that the EEOC has repeatedly determined that an accommodation that dis-accommodates other employees is not reasonable.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Quote Originally Posted by ElleMD View Post
    Does she know for fact that others have complained about her accommodations? Even still, it would be highly fact specific whether those complaints have any meaning at all. If the accommodation is causing a problem for others, it is valid and justifiable for her coworkers to point this out to management. Accommodations are not sacred and must be reasonable. If it negatively impacts her coworkers it would not be reasonable. As her current need for accommodation is now over, it just doesn't make sense that she would be fired even if her coworkers were upset about a no longer needed situation.
    I am not sure about the verification of complaints. Her need for accommodation is not necessarily over. We won't know that until the labs verify remission.

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    Really not seeing much of a case based on what you posted. You don't even know if her coworkers complained, what they might have complained about, and if those alleged complaints are legitimate. Assuming her employer who has been going out of their way to accommodate her when she hasn't been there very long suddenly decided to fire her because of complaints you don't know exist and for a situation which isn't necessary at this point, is a stretch. Even if she does relapse, her treatment, needs and accommodation might be very different.

    I truly understand the difficulty of trying to work and undergo cancer treatment. I went through it with my spouse and now with my Dad. Luckily, Dad is retired and only works very part time in a very flexible job with a very understanding employer. That isn't always possible.

    Your niece should file for unemployment and look into her insurance options, including COBRA.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Quote Originally Posted by ElleMD View Post
    Really not seeing much of a case based on what you posted. You don't even know if her coworkers complained, what they might have complained about, and if those alleged complaints are legitimate. Assuming her employer who has been going out of their way to accommodate her when she hasn't been there very long suddenly decided to fire her because of complaints you don't know exist and for a situation which isn't necessary at this point, is a stretch. Even if she does relapse, her treatment, needs and accommodation might be very different.

    I truly understand the difficulty of trying to work and undergo cancer treatment. I went through it with my spouse and now with my Dad. Luckily, Dad is retired and only works very part time in a very flexible job with a very understanding employer. That isn't always possible.

    Your niece should file for unemployment and look into her insurance options, including COBRA.
    I'm sure there is a lot of stuff I don't even know. I will tell her that, if there were complaints, to do her best to document them. I've found, however, that when bosses say there have been complaints they rarely say who complained or why. They stay vague. Either way, since they claim time card discrepancies, I think her first order of business is to find out if it is true she made the errors. If she did, then maybe even filing for UI will be futile.

    Again, thanks for taking the time to advise us. I truly appreciate it.

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    Always, always file for UI. It is free and it never hurts to apply.

    Even if complaints were made, it would be extremely unwise of her employer to divulge who made the complaints. Not everyone is level headed and too many would use that info to retaliate against the person who lodged the complaint.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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