- A 70-year-old secretary is suing the law firm employing her, claiming it violated state and federal laws by firing her two weeks after she requested a schedule adjustment to accommodate her cancer treatment (DiZenzo v. Dwyer Connell & Lisbona, No. 19-cv-12173 (D.N.J. May 5, 2019)).
- Marilyn DiZenzo broke her wrist and took a four-month leave, which included surgery. During that time, doctors discovered a malignant tumor in her elbow. Shortly before returning to work, DiZenzo requested an adjustment to her work schedule so that she could continue cancer treatments. DiZenzo alleged in court papers that, although the office manager approved the request, when she returned to work, the manager said she had misunderstood the law firm's vacation policy and that DiZenzo did not have vacation time to use for her appointments because she did not accrue time off during her leave. The manager said she could use her five available sick days and two personal days, but the firm fired her several days later, DiZenzo alleged.
- DiZenzo said she was terminated because of her age, her disability, her request for an accommodation or some combination of those factors.
The Americans with Disabilities Act (ADA) forbids discrimination by covered employers against qualified individuals with disabilities. The law requires an employer to provide a reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause it undue hardship — significant difficulty or expense. Reasonable accommodations can include a modified work schedule, the opportunity to work from home, reassignment and leave. Leave may be provided for a number of reasons related to a disability, according to the U.S. Equal Employment Opportunity Commission (EEOC), including allowing an employee to receive or recover from treatment related to the disability or to recover from "flare ups."
Leave as a reasonable accommodation can also include allowing an employee to take leave beyond what is usually provided by the employer or other laws, such as the Family and Medical Leave Act (FMLA). EEOC says that if an employee asks for more leave than is available to them, that the employer should consider whether additional leave can be provided as a reasonable accommodation, absent undue hardship to the employer. But, the federal agency notes, not all requests for leave as a reasonable accommodation must be granted. If it would be difficult to find someone to perform a job on a temporary basis because it is highly specialized or the employee cannot provide an estimated date of return, for example, then the request may constitute undue hardship for the employer.
Although EEOC and a majority of federal appeals courts have said that leave is a reasonable accommodation under the ADA, the 7th U.S. Circuit Court of Appeals ruled in 2017 that the ADA is not a leave law and that a multi-month leave is not an accommodation under the ADA. Until Severson, courts had generally found that leave beyond what the FMLA requires could be a reasonable accommodation under the ADA. The U.S. Supreme Court declined to review the ruling in April 2018.
In a study of discrimination complaints filed before and after the 2009 amendments to the ADA that, among other things, widened the definition of disability, extending protections for previous occurrences of cancer, the American Journal of Managed Care found that employees whose cancer was in remission still faced discrimination based largely on accommodations. The study also found that the courts considered cases based on employment terms, such as denying promotions or forcing retirements, as having more merit than accommodation, hiring and termination allegations.