Ask the Attorney

Questions from Readers

-By Beth Sufian, Esq.
The following questions are a compilation of questions asked by readers of CF Roundtable. Questions asked by readers are never disclosed without the agreement of the reader and information will never be published that would allow anyone to identify the reader who asked the question. Nothing in this column is meant to be legal advice about your specific situation. If you have additional questions please contact the CF Legal Information Hotline at: 800-622-0385. The Hotline provides free and confidential legal information to people with CF, their CF Center care teams and their families. The Hotline is sponsored by the CF Foundation, through a grant from Novartis. The Hotline can also be reached by e-mail at CFlegal@cff.org.

1. I am in the hospital. Can my em­ployer fire me while I am out sick

The only real job protection while a person is sick, under Federal law, is provided by the Family Medical Leave Act (FMLA). A person must work one year at a job in order to be eligible for leave time under the FMLA. In addition, the person must have worked 1250 hours in the prior year and the employer must have 50 employees at offices within a 75-mile radius. If the employer is a bank and it has five branch offices within 75 miles of each other and employs a total of 50 people, then the FMLA will apply.
FMLA allows 12 weeks of unpaid leave to care for oneself, spouse, child, or a parent. If someone other than the person who is sick requests FMLA leave, the physician treating the person who is sick must complete the FMLA paperwork. A violation of the FLMA can be reported to the Department of Labor. A person’s employment should not be terminated while out on FMLA. However once the FMLA time has run out, the employer can terminate the employment if the person is unable to return to work at that time and does not have any other available sick or vacation time left. Employers can count sick and vacation time as part of the FMLA leave 12 weeks. For example, an employer could give two weeks of sick and vacation time and then 10 weeks of FMLA leave.
The employer can ask the employee to have a form completed by his treating physician indicating that the employee is out due to a serious medical condition. The FMLA defines a serious medical condition as one that requires either hospitalization or the care of a physician. If an individual does not want to disclose their CF diagnosis to their employer, the person with CF will have to discuss whether their physician feels comfortable writing a more general description of the person’s condition on the FMLA form.
The FMLA only protects an employee from having employment terminated because he is out sick or is out to care for a spouse, child or parent who is sick. The employer can terminate a person’s employment if the employee has violated company policy or broken the law, even if the person is on FMLA leave. For example, if an employee with CF is out on FMLA leave and during that time the employer finds that the employee had stolen money from the employer, the employer can terminate the employment even though the employee is on FMLA. The reason for the termination is not due to the election to take FMLA time but because the person broke the law.
Some people with CF mistakenly believe that the Americans with Disabilities Act (ADA) prevents an employer from terminating the employment of a person who is out sick. THIS IS NOT TRUE. Under the Americans with Disabilities Act most courts have held that a person who has used up sick and vacation time (and has either used up FMLA time or is not eligible for FMLA time) can be terminated from their job, if they are unable to work, even if the reason they are unable to work is due to an underlying medical condition.
Sometimes an individual may ask for reasonable accommodations under the ADA and request additional time off due to sickness. The courts have typically held that the employer does not need to give additional time off as a reasonable accommodation. However, a person can certainly ask their employer if he will grant additional sick time as a reasonable accommodation. The chances of having additional time off provided increase, if other employees have been given additional time off.

2. How can I obtain short-term or long-term disability benefits from a private company?

Typically people with CF are not able to purchase short-term or long-term disability policies on their own. This is because there are no federal laws that require insurance companies to sell such policies to anyone who is interested. However, many large employers offer short-term and long-term disability polices to their employees. Often the employee must pay a small amount each month in order to obtain such coverage in the event the person becomes unable to work.
Typically, policies may require that the employee work for the company for a year before the policy will provide benefits, if the employee is out of work due to a condition that is pre-existing. People with CF should almost always opt for such a policy. Often the chance to enroll in coverage is provided only during the first 30 days of employment. After that time period the employee cannot enroll in the short-term or long-term disability plans. Employers have no duty to offer short-term or long-term disability to employees.
A person who is unable to work due to disability often is eligible for short-term disability benefits and long-term disability benefits, if the disability lasts a certain period of time. The provision of such benefits allows some salary replacement; typically it is 60-70% of salary. The amount of benefits will depend on the policy. However, being on short-term disability or long-term disability does not protect the person from having employment terminated. Usually, as long as the employee is on short-term disability before their employment is terminated, the employee will be able to receive short-term disability; and then long-term disability, if they are still unable to work – even if the employer has terminated their employment.

Beth is a Director of USACFA. Her email is: bsufian@usacfa.org. You may send her questions of a legal nature that are CF-related.