Can Your Job Punish You for Medical Time Off?

[00:00:00] Christina Phillips: You double check the calendar. You’ve got a doctor’s appointment. And before you even ask for time off, you start running the scenarios. Will this annoy them? Will it make me look unreliable? For so many women, taking care of yourself still feels like asking for permission.

 

[00:00:13] Deirdre Arato: Unfortunately, what I’m seeing in therapy is that the person does feel like they’re a burden.

 

[00:00:19] Deirdre Arato: I’m being fired right when you’re going through chemotherapy, then what? Where’s the humanity in it?

 

[00:00:33] Christina Phillips: You double check the calendar. You’ve got a doctor’s appointment. And before you even ask for time off, you start running the scenarios. Will this annoy them? Will it make me look unreliable? Should I reschedule again? For so many women, taking care of yourself still feels like asking for permission. I’m Christina Phillips.

 

[00:00:50] Christina Phillips: Welcome to Not in the Newsletter. The things you’ll never read in the company newsletter, what’s okay, what’s not, and everything your company would rather keep quiet. [00:01:00] Today, we’re asking, can my boss deny time off for medical appointments? I am here with Deirdorado, psychotherapist, Josh Friedman, employment discrimination attorney.

 

[00:01:12] Christina Phillips: And we’re gonna dive in and talk about when, you know, you can leave your job for a medical appointment. So I wanna zoom out for a second and ask, why does asking for medical time off feel so emotionally loaded? 

 

[00:01:29] Deirdre Arato: Well, I think it’s because it’s makes you feel vulnerable. It’s a sign of weakness. So if you’re going to disclose that, it’s already like, oh my gosh, the, the thought is what’s wrong with me?

 

[00:01:40] Deirdre Arato: I don’t wanna be perceived that I can’t handle my job for a week. Mm-hmm. So there’s a lot of internalization going on there and it makes you feel very vulnerable. 

 

[00:01:48] Christina Phillips: Yeah. I unders – I mean, I understand that. I mean, I would, I would think every medical appointment is different. You know, obviously if it’s a dentist appointment, that’s one thing.

 

[00:01:56] Christina Phillips: If it’s a prenatal appointment, that’s another thing. If it’s a [00:02:00] psycho, a mental health – That’s even worse. I mean, I can imagine, you know, people don’t want to disclose that at all. So Josh, what do you think? I mean, can you take off for a psychotherapy appointment? 

 

[00:02:11] Josh Friedman: Sure. So great question. Uh, you know, a couple things come to mind when analyzing that issue specifically for a, a psychotherapy appointment.

 

[00:02:18] Josh Friedman: Uh, the short answer I would say is yes. You know, i- if you need time off for a, uh, mental health impairment or whatever it is that you’re seeking therapy for, that would allow you to request what’s called a, a reasonable accommodation if, if you need it. Mm-hmm. Where you’d be essentially asking your job to accommodate you to attend this appointment and, and to work with you to basically just engage, have a conversation with you about making that, uh, accommodation work without causing some sort of operational or an undue burden on the company.

 

[00:02:46] Josh Friedman: And if we’re talking about a 50-minute therapy session, in most settings, um, I can’t imagine how that would pose an undue burden to prevent you or prevent the, the person from attending that appointment and then either finishing their work, a- adjusting their start [00:03:00] times. It sounds like just, you know, right off the top of the head that there’s a number of, uh, accommodations or, or, or ways to make that work without, uh, affecting the company – Right.

 

[00:03:09] Josh Friedman: Burdening the company too much. 

 

[00:03:10] Deirdre Arato: Right. But unfortunately, what I’m seeing in therapy is that the person does feel like they’re a burden. And by even disclosing that type of information, it’s automatically like, oh my God, they’re gonna look at me differently. 

 

[00:03:23] Christina Phillips: Yeah. 

 

[00:03:25] Josh Friedman: Uh, you’re, I guess you, your, uh, patients and our clients have a lot of overlap.

 

[00:03:29] Josh Friedman: Um, I see a lot of that too. P – uh, my clients have, were afraid, uh, to even disclose, uh, what was the underlying condition, what, you know, what, what the treatment was for, for therapy because they don’t want the stigma attached to them that there’s something wrong – Right. Mm-hmm. And they can’t perform and then they’re, you know, falling out of favor.

 

[00:03:45] Josh Friedman: Um, or they just don’t want the stigma that you’re missing work. Right. Right. A lot of these, uh, companies have a culture of, of grinding and you have to be there to grind and, and, uh, stepping away from that can also negatively affect you as well. 

 

[00:03:58] Deirdre Arato: Right. And, and you know what [00:04:00] else I see a lot? That the, it’s the actual companies that are causing the mental health issues.

 

[00:04:05] Deirdre Arato: To even begin with. Well, I think 

 

[00:04:06] Christina Phillips: we’ve covered some of that on some of these episodes, but, um – Right. But I mean, I would find it really intimidating to say, “Oh, I have a psychotherapy appointment every Friday at 2:00.” Right. “And I need that hour. You know, I, I just, I, I personally don’t think I could do it.” Um, how do you go about that?

 

[00:04:24] Christina Phillips: Um – 

 

[00:04:25] Josh Friedman: Sure. So from a legal perspective, it’s, it’s, it can be very tricky because you wanna protect your privacy and, and keep certain things private. I, I understand that. But an employer can request, uh, information to evaluate, first of all, you know, what is going on, why, you know, why you need this. Mm-hmm. And then also sometimes some more detail is necessary for them to evaluate whether they can make this accommodation work, you know?

 

[00:04:47] Christina Phillips: Right, right. 

 

[00:04:48] Josh Friedman: And, and employers can request it. That part of like the, the law calls it engaging in an interactive dialogue, which is just a fancy way of saying, “Have a, have a conversation about what you need, why you need it, how can we help, you know, at the company? [00:05:00] How can we help? How can we make it work?

 

[00:05:01] Josh Friedman: And if we can’t, here are some alternatives that would work for us. Does that work for you?” 

 

[00:05:07] Christina Phillips: Our first story comes from someone with a serious clotting disorder. She finally gets in to see a specialist, an appointment that could prevent life-threatening complications. She requests time off of a full week in advance.

 

[00:05:18] Christina Phillips: Her request is denied. She’s scheduled for a full shift anyway. Rescheduling isn’t just convenient, it’s dangerous. The appointment involves placing a semi-permanent line for IV medication. She’s already had medical emergency at work. She’s already had a medical emergency at work before. Her coworkers once had to call 911 because she was bleeding heavily after a minor injury.

 

[00:05:41] Christina Phillips: She’s trying to find coverage. No one is available. And now she’s asking herself, “Is there anything I can do?” 

 

[00:05:48] Deirdre Arato: That’s crazy that she has to find the coverage. 

 

[00:05:50] Christina Phillips: Yeah. 

 

[00:05:50] Deirdre Arato: First of all, let me just say that. Yeah. 

 

[00:05:53] Josh Friedman: Sure. And, and, and from a legal perspective, I see a, a, a number of problems w- with this too. You know, first of all, a person that [00:06:00] has, uh, a, a, a physical or mental impairment like this, uh, clotting disorder in this example here, um, you know, right, right off the bat, if you have a clotting disorder, it’s gonna affect major life activities.

 

[00:06:12] Josh Friedman: It’s gonna affect internal processes, you know, your circulatory, respiratory system. Um, all of those things would entitle a person in this situation to, you know, a reasonable accommodation to ask for time off. Even if you don’t have sick time or PTO, you can ask for this time off as a reasonable accommodation to treat what’s considered a disability.

 

[00:06:29] Josh Friedman: Under the law we’re talking about, this clotting disorder is, is characterized as a, as a disability. Um, so you have that legal protection to request it as time off and, uh, for that reason. And if the company denies it, that’s, that’s unlawful. Especially if they deny it without talking to you, engaging in, you know, I keep saying an interactive dialogue.

 

[00:06:45] Josh Friedman: These are just conversation. Why do you need this? You know, how long is it gonna be? When are you gonna be back online? Whatever, you know, whatever it is. And if a company were to, to deny, deny that without even having that conversation, that’s a problem. And number two, just looking at this, um, I [00:07:00] can’t imagine if it is just for, you know, treatment that there would be some catastrophic operational or undue burden that would, uh, cover the company from denying this if they had to defend that in court, you know, r- right off the bat just looking at it.

 

[00:07:13] Josh Friedman: I’d be surprised if the, if a company could argue legally and, and, and, uh, truthfully that the, this employee’s request in this situation actually caused an undue burden.That’s why we denied it. 

 

[00:07:24] Christina Phillips: Well, what about if they said yes? What if they said, okay, yes, we will give you, you know, the time off, but you have to find a replacement?

 

[00:07:30] Christina Phillips: Is that a little bit of a gray area? 

 

[00:07:32] Josh Friedman: Uh, that, you know, I actually haven’t heard that situation two months, uh, too much in, in, in, in my, uh, experience. But I would say, like, if, if the person is required to find coverage and can’t, and now it’s like, now you can’t go, it comes back to what I was saying before.

 

[00:07:44] Josh Friedman: Okay. That’s still unlawful. So can a, can a company ask you to do that as like a courtesy? Sure, they can. Mm-hmm. But if the employee can’t land the coverage that, that would, should not form the basis to deny, you know, the company should figure something else out. 

 

[00:07:59] Christina Phillips: Well, how [00:08:00] does the law actually determine what’s a disability and what’s not?

 

[00:08:03] Josh Friedman: Sure, sure. So it’s a, uh, the, the legal definition under the ADA is that it’s a physical or mental impairment that substantially affects one or more major life activities. And it, a life activity’s been defined all the way up through the Supreme Court as either it could be something like walking, it could be something internal.

 

[00:08:20] Josh Friedman: An- an, an endocrine issue, a circulatory blood issue here could, could qualify for that. So if, if you have an impairment to a physical, uh, uh, if you have a physical or mental impairment to, to your body, to your, your, your major life activities, that, that would qualify you, uh, for req – for the ability to request reasonable accommodation.

 

[00:08:40] Josh Friedman: The bar is slightly lower under, under New York and, and New York City, uh, law as well. 

 

[00:08:46] Christina Phillips: Oh, okay. 

 

[00:08:46] Josh Friedman: It’s an easier burden to meet. 

 

[00:08:48] Christina Phillips: Yeah. No, I didn’t realize that it was, you know, I mean, because I’ve heard stories where people have cancer and they can’t have time off for chemotherapy. I mean, can you imagine?

 

[00:08:58] Deirdre Arato: That, it’s. I’m [00:09:00] appalled. It’s appalling. You 

 

[00:09:01] Christina Phillips: heard stories like 

 

[00:09:02] Deirdre Arato: that as well, right? Yeah. And, and as a mental health specialist, it’s, I cannot believe the insanity of that in the first place. Mm-hmm. It’s like, where is humanity? You have to be kidding me. The stress alone that it puts on a person that they’re dealing with a life-threatening illness.

 

[00:09:17] Deirdre Arato: And then on top of it, you don’t even have the support from, from your job. 

 

[00:09:21] Christina Phillips: I know. 

 

[00:09:22] Deirdre Arato: It’s devastating. 

 

[00:09:24] Christina Phillips: I know. 

 

[00:09:24] Deirdre Arato: You’re ruining people’s lives, and that is just at the core of it. Unfunctionable. And it, it, it really aggravates me. I have to say, it’s disgusting. 

 

[00:09:33] Josh Friedman: Yeah. 

 

[00:09:33] Christina Phillips: But I, but I, again, I, I don’t think, you know, I didn’t say it today, but I just don’t think people know their rights.

 

[00:09:39] Christina Phillips: They don’t know – Right. What they’re entitled to and, you know, what’s allowed. So – 

 

[00:09:44] Josh Friedman: True. And I’ve seen it both ways. I’ve seen people that don’t know their rights that get pushed around by their employer, maybe don’t go get back cancer treatment. Mm-hmm. Or employees that do know their rights speak up and advocate for that, try to avail themselves of that, and then the employer punishes them for that.

 

[00:09:59] Josh Friedman: You know, to [00:10:00] your example about a ca – I’ve actually had a case like that. I, I had a, a case where a, uh, a client of mine requested, um, off for two months to get chemo. And then while he was getting radiation, he said, “I’ll come back while I’m getting radiation. I just need two months off for the chemo. I’m, you know, gonna be bedridden.”

 

[00:10:15] Josh Friedman: And you can imagine the complications and pain associated with that. Job said no. Wow. You either continue working or you’re fired. 

 

[00:10:23] Christina Phillips: Really? 

 

[00:10:23] Josh Friedman: Yeah. In, in writing, we had it all, you know, this, this, I had this kind of reaction too when, when the client first called me. But he had it in writing, and sure enough, that’s exactly what happened.

 

[00:10:32] Josh Friedman: And, you know, part of the litigation was showing that this didn’t cause an undue burden, that they could find replacement coverage temporarily while he’s getting chemo. And – 

 

[00:10:40] Christina Phillips: What was their excuse? They just didn’t feel like it? 

 

[00:10:43] Josh Friedman: They’re, they tried to, um, uh, weakly argue that this did cause some sort of undue burden, but through litigating the case in, in the discovery process of the lawsuit, I uncovered that that wasn’t true.

 

[00:10:55] Josh Friedman: And in fact, by firing him, they didn’t even find a replacement right away. It took them several months [00:11:00] longer than the time he was requesting off. So I, I went into court and argued. I was like, “Judge, they made worse, more of a burden on themselves because they couldn’t find a replacement for four months than if they’d just given him the two months off.”

 

[00:11:10] Josh Friedman: And that, that optics of that, that, that theory, uh, we prevailed. You know, we, they ultimately, uh, settled – Good. Settled the case, um, because they, uh, realized that this was a, a wrongful termination for a guy who literally had cancer. 

 

[00:11:24] Christina Phillips: That’s terrible. 

 

[00:11:24] Josh Friedman: Yeah. 

 

[00:11:25] Christina Phillips: That is just horrible. 

 

[00:11:26] Deirdre Arato: And that stress alone is going to exacerbate the person – 

 

[00:11:30] Josh Friedman: uh-huh.

 

[00:11:30] Deirdre Arato: From being cured and healed. 

 

[00:11:33] Josh Friedman: Yeah. 

 

[00:11:34] Deirdre Arato: It’s gonna prevent it, I should say. It’s going to prevent it. Yeah, it’s certainly 

 

[00:11:37] Christina Phillips: not gonna 

 

[00:11:38] Deirdre Arato: help. No, it’s gonna make it 

 

[00:11:39] worse. 

 

[00:11:39] Christina Phillips: Yeah. I mean, just to think of like, “Okay, now I’m being fired from my job for, you know, having to get treatment.” 

 

[00:11:46] Josh Friedman: Where, where’s my insurance coverage coming from, you know, the physical and mental, to, to your point, Joe, just overlap.

 

[00:11:51] Josh Friedman: Awful. Yeah. Yeah. 

 

[00:11:52] Christina Phillips: But, um, well, I’m glad that you won that case. 

 

[00:11:55] Josh Friedman: Me too. Me too. 

 

[00:11:56] Christina Phillips: He’s healthy now. 

 

[00:11:57] Josh Friedman: Yeah. He, he has a huge scar from the [00:12:00] tumor that was removed on his head, but he was, uh, he, he’s a, a miracle he’s alive and, and he was so grateful for the way that our, our firm and myself handled that case for him.

 

[00:12:08] Josh Friedman: It was one of the most rewarding professional experiences I’ve ever had. 

 

[00:12:11] Christina Phillips: I can imagine. Sure. I mean, that’s a, that’s a win-win for the two of you. And you know what? I think if I were him, I wouldn’t wanna go back to that company when I regained my health. I’d be like, no. 

 

[00:12:20] Josh Friedman: It’s so funny you say that. They, as soon as they got the first letter from me, uh, you know, and, and Phillip’s asso – like, first thing he’d do is try to offer his job back.

 

[00:12:28] Josh Friedman: And I was like, why does it take a lawyer to, like, do the right thing? 

 

[00:12:31] Christina Phillips: Right. 

 

[00:12:31] Josh Friedman: Now why? I wouldn’t recommend you go back to a situation like that anyway. 

 

[00:12:34] Deirdre Arato: Exactly. I would never go back. 

 

[00:12:38] Josh Friedman: If you’re stuck in your head asking, “Is this normal or should I say something?” Harassmenthealth.org is where you should start.

 

[00:12:45] Josh Friedman: They give you the language, the options, and the real talk that can help you move forward. Visit harassmenthealth.org to take the first step. 

 

[00:12:54] Christina Phillips: The next story comes from someone trying to access mental health care. She waits a full month to get an appointment with a [00:13:00] therapist. She requests a half day off.

 

[00:13:02] Christina Phillips: Her manager denies the request. The reason, a scheduling conflict with a coworker who already has a half day approved. There’s nothing in the company policy that prohibits this. She tries to reschedule, but the next available appointment is another month out. She doesn’t think her mental health will last that long without support.

 

[00:13:20] Christina Phillips: Now she’s wondering if she should escalate this to HR or if she’s overreacting. So what’s the girl to do? Okay. 

 

[00:13:28] Deirdre Arato: Well, you know, first let me address, if it’s taking you a month to get a, an appointment with a mental health therapist, find a new therapist. 

 

[00:13:35] Christina Phillips: Yeah, but you remember after COVID? I mean, they were swamped.

 

[00:13:39] Deirdre Arato: Yeah. Well, 

 

[00:13:40] Christina Phillips: I don’t know about you, but I mean, I just know – 

 

[00:13:42] Deirdre Arato: I did. I’m just saying that’s ridiculous. If you’re, if you’re in, in that, if you’re in that much pain – That’s distress. In that much distress, and you have to wait a month for a therapist, start looking for somebody else. That’s number one. You should have to wait a month.

 

[00:13:59] Deirdre Arato: Yeah. That would [00:14:00] not happen at the Blue Lotus Garden of Healing.

 

[00:14:05] Christina Phillips: No, but the thing is, is that, you know, to your point, okay, we, we talked about this a little bit. The, the mental health thing, I mean, is it considered a disability or. I mean, because it could be – 

 

[00:14:17] Josh Friedman: Sure, sure. It’s a, it’s a tricky question, one I deal with a lot. We get a lot of, uh, potential clients and clients that have a generalized anxiety disorder, not something that’s easily observable or even understandable to some people.

 

[00:14:30] Josh Friedman: So, you know, those cases can go either way. If the person has a history of treatment for anxiety and anxiety disorder, depression, whatever, that would probably help support a claim that this is actually a disability defined under the law as I, as I gave it before, you know, substantially living in major life activities.

 

[00:14:46] Josh Friedman: Um, so if you have documented records for that, you know, that, that would certainly help. Um, and to your point, Deidre, the first thing I was thinking about is whether this would actually cause an undue burden on the company to have two people off, um, at the same time. [00:15:00] I mean, there is an argument that it could, depending on the nature of the business.

 

[00:15:03] Josh Friedman: And to your point, the company can, it doesn’t have to be the employee’s preferred accommodation. It just has to be a reasonable alternative accommodation. So to your point, the company can lawfully suggest, is there another therapist you could see who has availability sooner within the next week – 

 

[00:15:17] Deirdre Arato: uh-huh.

 

[00:15:17] Josh Friedman: Instead of waiting another month. 

 

[00:15:19] Deirdre Arato: Mm-hmm. 

 

[00:15:19] Josh Friedman: And that would be the interactive dialogue – uh-huh. That the law contemplates that employers and, employers and employees are supposed to have with each other. And if it is true that there’s a, a comparable, you said the Blue Lotus, uh – Garden 

 

[00:15:29] Deirdre Arato: of healing? 

 

[00:15:30] Josh Friedman: Garden of healing, right?

 

[00:15:31] Josh Friedman: Yeah. If you have an appointment available and, and it’s, uh, you know, similar specialty, similar care, I would probably say that, you know, the employee might have to look into that because again, it’s not a, a matter of preference. You don’t have a legal right to the, the, the, the counselor of your preference.

 

[00:15:46] Josh Friedman: Um, you just have a legal right to a reasonable accommodation, which could be the one you propose, or it could be the alternative – 

 

[00:15:51] Deirdre Arato: uh-huh. 

 

[00:15:51] Josh Friedman: The company prose. So I would be prepared, if the company suggests that, to have a, a response to that about either why that’s not s – for some reason a, a [00:16:00] reasonable alternative, um, or if it is, you know, really explore it.

 

[00:16:03] Josh Friedman: And it would not double down on, “I need this one special therapist,” i- if that’s not actually the case. Mm-hmm. Uh, if it’s not for some, like, schizophrenia or something comes to mind then – 

 

[00:16:11] Christina Phillips: uh-huh. 

 

[00:16:11] Josh Friedman: You know, something like that, maybe you need a specific specialist, but if it is for general – Oh, 

 

[00:16:16] Christina Phillips: like the clotting disorder, I mean, that sounds like that’s a very spec – that was a very specific thing.

 

[00:16:20] Josh Friedman: Right. 

 

[00:16:20] Christina Phillips: And this is something where there might be more practitioners that could help – Correct. In a situation. Mm-hmm. So I can see why, you know, that could be interactive with the company. Uh – 

 

[00:16:30] Deirdre Arato: And the, something that’s coming up to, for me is that if there, if the person is saying that they don’t think that their mental health can wait, then now – 

 

[00:16:39] Christina Phillips: kind of.

 

[00:16:40] Deirdre Arato: Yeah. So now you’re putting yourself in a crisis situation, which you don’t want. I don’t know how much you wanna disclose that to your boss that you may be suicidal or in crisis. That could, is going to cause another, another issue and more stress. So – 

 

[00:16:56] Christina Phillips: Well, what would happen, Josh, if that were the case? 

 

[00:16:58] Deirdre Arato: I mean, [00:17:00] and – 

 

[00:17:00] Josh Friedman: Meaning if you told your employer that it’s, it’s like a severe dire situation?

 

[00:17:04] Deirdre Arato: Yeah, I’m feeling suicidal. 

 

[00:17:06] Josh Friedman: Yeah, sure. 

 

[00:17:06] Deirdre Arato: I’m under so much stress that I’m having suicidal ideation, then what? 

 

[00:17:10] Josh Friedman: Right, right. So the distinction is if, like, workplace stress wouldn’t rise to the level of a, of a disability, but if you were having suicidal ideations because of, you know, a lot of stuff going – uh-huh.

 

[00:17:21] Josh Friedman: You know, on in your life, just not tied to how, how, how big, you know, how, how busy the job is, um, that would probably tip the scale back to the employee’s figure that I need this specialist, I need this appointment, have the other person come back and, and deny their request. Um, so it really is a case-by-case basis, and it, it depends on the severity of, of what’s going on.

 

[00:17:41] Christina Phillips: Oh, but that brings up a good point, though. So once they’ve granted your request, let’s say, okay, yes, you’re good to go. Like in this case, that employee did get now, but this other person needs it more severely, they can take that away with – 

 

[00:17:54] Josh Friedman: No, uh, uh, so they, I guess they can, it’s within their discretion to do that, but [00:18:00] ordinarily, you don’t.

 

[00:18:01] Josh Friedman: The law, there’s a, a string of cases, uh, out there that says that, you know, companies don’t have to change schedules, pull people around, but it’s part of the broader interactive process. If that is possible, I mean, they, they can ask, “Can you, you know, the other employee, can you just work this one and take your day off the next day?”

 

[00:18:16] Josh Friedman: You know, it’s, it’s a, you know, it’s interactive. It’s supposed to be broad and encompassing and just, like, fluid and evol – just to make something work for both sides is, is what it’s, is the intent from, uh, Congress who, who, who drafted this statute, just to make it work between. So if that’s available and can be done, sure, the company should ex- explore it.

 

[00:18:32] Josh Friedman: Do they legally have to if they wanted to double down and say, “No, we don’t have to move schedules.” They, they. That would be unfair and probably not a great place to work, but – 

 

[00:18:41] Christina Phillips: Right. 

 

[00:18:41] Josh Friedman: You know. Okay. Good 

 

[00:18:42] Christina Phillips: to know. 

 

[00:18:44] Deirdre Arato: If you like this conversation, hit subscribe. We’re dropping new episodes and shorts all the time.

 

[00:18:51] Christina Phillips: After eight years with the company, she told her boss she needed time off for chemo. Two weeks later, she was written up for absences, then fired. How do you handle that? It [00:19:00] sounds very similar to what we just spoke about with your case. Um, and, uh, you know, again, I mean, this is two companies that have now denied.

 

[00:19:09] Christina Phillips: Mm-hmm. And so how many are out there, actually, and – 

 

[00:19:12] Josh Friedman: I wish less. Um, yeah, so I mean, just hearing this topically, you know, obviously, chemo and cancer, that would qualify as a, as a disability entitle an employee to, to request a reasonable accommodation. And in most instances, I would have to imagine that, you know, the, the time off, month, two months, three months, whatever it is, um, wouldn’t actually cause an undue burden on the company, despite what their lawyers might argue.

 

[00:19:37] Josh Friedman: You know, I’ve seen a lot of case law out there, um, that says, you know, they’re finding that six months off, you’re even getting closer to 12 months off, didn’t cause an undue burden on, on a company. It, it varies, you know, the, the, the court system does a, an, an analysis of, like, industry, company, like, what the operations are looking like, and, you know, and, and will make that discretionary determination of whether this is or, or isn’t an undue burden in [00:20:00] that situation.

 

[00:20:00] Christina Phillips: But practically speaking, so if it’s. So she has this condition, it’s the first time she’s asking, they deny it, she can automatically call an attorney and pursue a case against the company? 

 

[00:20:14] Josh Friedman: Sure. She can, she can definitely call an attorney and get a, a consultation, and that attorney, an employment law attorney, can either write a really strongly worded letter explaining why you need to or should grant this accommodation, and, and the attorney can handle that interactive process, when it be the employee’s advocate during those situations, or, I mean, in this situation, it’s already been fired, yeah.

 

[00:20:33] Josh Friedman: I mean, just hearing that, the, the high notes of it, you know, that seems like that they’re, the company would be exposed for, for wrongfully, uh – Oh, 

 

[00:20:40] Christina Phillips: right, right. That’s right. She was actually fired. Yeah. Yeah, sorry, sorry. 

 

[00:20:43] Josh Friedman: But even, even, even before that, even if she wasn’t fired at, at this instant, it, it seems like it’s imminent.

 

[00:20:48] Josh Friedman: You know, the company’s giving you pushback. 

 

[00:20:50] Deirdre Arato: Mm-hmm. 

 

[00:20:51] Josh Friedman: Um, and if they’re just reluctant to even engage with you just to talk to you, I would, I would have an attorney – 

 

[00:20:56] Deirdre Arato: Yeah, and being fired, right, when you’re going through chemotherapy, then [00:21:00] what? ‘Cause you would, you’re losing your insurance. 

 

[00:21:01] Christina Phillips: Yeah, how, how you can’t even – 

 

[00:21:03] Deirdre Arato: I can’t even imagine – 

 

[00:21:04] Christina Phillips: Yeah, you’re gonna go for an interview now to get a new job?

 

[00:21:06] Christina Phillips: I mean, it’s really heartless. 

 

[00:21:07] Deirdre Arato: It’s, it, it is heartless, and that’s, that’s the saddest part about it all. Where’s the humanity in it? I don’t get it. 

 

[00:21:13] Josh Friedman: Right. You know, these people dedicate so much time from their day, from their lives. Yeah. You know, could be several years, even if it’s a few months, you know, and, and I think companies should be a little more flexible, especially if they can make it work.

 

[00:21:23] Christina Phillips: Mm-hmm. Right? Mm-hmm. This next story is about a man who injured his back. His doctor ordered physical therapy twice a week, but his boss refused to adjust his schedule. Now he’s forced to choose between healing and keeping his job. Hopefully, it didn’t happen on the job because that’s a different topic, but.

 

[00:21:41] Josh Friedman: Sure, sure. So, yeah, th- that aside, a couple of things jump out. You know, my. At, at first glance, if the employee’s been working there over 12 months, he can request intermittent leave under the Family Medical Leave Act, the FMLA, that entitles you to job protected leave, unpaid, but job protected leave. So i- i- if [00:22:00] there.

 

[00:22:00] Josh Friedman: If he didn’t have sick time, if he didn’t have PTO time, that’s one option to, to get the, the treatment you need. And if the employer interferes with your right, uh, to that FMLA or retaliates against you, you know, y- you’re gonna use this FMLA, we’re gonna fire you, we’re gonna pay, whatever it is, you know, the, the company would be, uh, exposed wrongfully terminating the person.

 

[00:22:18] Josh Friedman: Alternatively, you could also make a reasonable accommodation request, like we’ve been talking about, um, which may or may not be as, as straightforward as the FMLA. FMLA is, is harder for a company if, if you’re entitled to it, harder for them to deny it. Um, but if, if that’s not available to you, if you haven’t been working there, uh, the requisite amount of time or the company’s too small, uh, you can still request that as a reasonable accommodation, you just have to be prepared to engage with the, the company and, and what they probably would push back as, as being a burden if you’re out every week for this period of time.

 

[00:22:47] Josh Friedman: Um, but I would imagine even in that situation, proving that that’s an undue burden under the ADA would be very difficult. I, I, I would, uh, strongly urge the employer to consider trying to make something work with this, this person who’s – 

 

[00:22:59] Christina Phillips: So you [00:23:00] brought up an interesting point. Do you have to be working for a certain amount of time at a company before you can or are entitled to take a family m – a family medical leave out?

 

[00:23:09] Josh Friedman: Sure. So under the FMLA, you have to work for the company for 12 months, and that would entitle you to 12 weeks of, of leave. And you could use that leave continuously, you can use it intermittently, you could break it up. Uh, you have flexible options within the, the 12 weeks. And it can even be extended in some situations too, if it’s necessary.

 

[00:23:26] Deirdre Arato: Okay. That’s important information because unfortunately, when people come to me, they have gone back to work, they chose their job over their healing, and now they’re in a worse place than they were before. So to know this information is really good. 

 

[00:23:41] Christina Phillips: And is that nationwide, do you know? Or is that just – Sure, 

 

[00:23:43] Josh Friedman: and that, that’s a federal statute, um, so that applies nationwide.

 

[00:23:47] Josh Friedman: Yeah, and in New York and, and New York City offer, uh, similar protections as well, probably even more lenient protections, uh, than that under the, you know, the, their accommodation policy. But yeah, that’s a federal law, FMLA. 

 

[00:23:57] Christina Phillips: Yeah, I s – I, I’m, I’m beginning to think [00:24:00] that, like, this is not in the company handbook.

 

[00:24:02] Josh Friedman: That’s a good one, huh? 

 

[00:24:03] Christina Phillips: You know, it’s kind of like – Right. Um, it’s not, 

 

[00:24:05] uh – 

 

[00:24:06] Josh Friedman: It’s sometimes it’s just the stuff that’s handed to you in the onboarding, if at all, but it’s, it probably doesn’t, doesn’t make the newsletter remind 

 

[00:24:12] Christina Phillips: me. Yeah, for sure. There you go. It’s not made in the newsletter this time, so, um.

 

[00:24:17] Christina Phillips: Very helpful. As we wrap this episode up, I mean, what is not making news the company newsletter? I wanna say, while you think you’re getting better, your career isn’t. I’m gonna go with guilt replacing clear policy. Definitely not gonna make it into the newsletter. 

 

[00:24:35] Josh Friedman: So for, for me, what’s not in the newsletter is that if you have a legitimate physical or mental impairment, that doesn’t mean you’re not a team player, doesn’t mean that you’re lazy, it doesn’t mean that you’re, you know, anti the, the company’s mission.

 

[00:24:46] Josh Friedman: It just means that you need some help and companies should work with you to figure that out as a team. 

 

[00:24:52] Christina Phillips: Mm-hmm. We’ll be rewriting these newsletters for the company. Thanks for listening. We’ll be back [00:25:00] soon with more stories, expert advice, and straight talk you won’t hear anywhere else. Remember, your story is a spark that lights the way for someone else.

 

[00:25:08] Christina Phillips: Until next time.