Kara Jorud was ill with breast cancer. She informed her boss at Michaels arts and craft store in Boca Raton that she would need surgery and time off to recover.
Last week Jorud, 47, won an $8.1 million verdict from a federal jury after she sued her employer, claiming she was harassed for taking time off and then unjustly fired. The suit cited violations of the Family and Medical Leave Act (FMLA) and other worker protection laws.
Michaels Stores Inc., a retail chain based in Irving, Texas, said it was disappointed with the jury's verdict. "Michaels works daily with men and women who have illnesses and disabilities of all kinds, and has a long track record of treating them fairly and compassionately," wrote Mike Veitenheimer, general counsel for the company, in an e-mail.
But for many workers, Jorud's case raises questions about their own protections under employment law. The Sun Sentinel asked legal and employment experts what workers should know about their rights when they have a serious health condition.
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What is considered a serious health condition?
Not a cold or the flu. It has to be illness, injury, impairment, or physical or mental condition that involves care at a hospital or other medical office. You also have to be unable to attend work or perform regular daily activities, or be receiving continuing treatment for a chronic or serious condition from a health provider.
Am I protected by FMLA?
Not always. If you work for a private employer at a location within a 75-mile radius of a job site with 50 employees, then you may be eligible for job protection and medical leave under FMLA.
You also must have worked for the employer for at least one year, though the time worked doesn't have to be all at once. Within the previous year, you must have worked 1,250 hours, or at least 24 hours a week, to qualify.
Do I need to take leave for a health condition all at once?
No, there are different types of leave an employee may take under FMLA. If it's for childbirth or surgery, for example, the worker might give the employer notice of weeks required for recuperation. A cancer patient on chemotherapy, however, might need small periods of time over several months for medical treatment.
How much time off can I take under FMLA?
At most, 12 unpaid weeks. Some employers continue pay during that leave. Certain workers could get more leave related to their health condition under the Americans With Disabilities Act (ADA).
Do I have to tell the employer I'm taking FMLA?
Employees are not required under the law specifically to tell an employer, "I want an FMLA leave," said Eric Gabrielle, a lawyer with Stearns Weaver Miller in Fort Lauderdale. But they should "provide enough information that there might possibly be a need for a leave."
Gabrielle recommends employees and employers "err on the side of giving and receiving more information."
An employee is usually best served by documenting a health condition or disability with the employer, experts say.
Kessela Brown, spokeswoman for the EEOC in Miami, said it's up to the employee to tell their employer about their health situation and ask for an accommodation, if necessary. "Most accommodations are under $500," she said.
Are employers generally flexible with employees who are cancer patients?
Half of the employers that responded to a recent survey by the International Foundation of Employee Benefit Plans about accommodating seriously ill employees say they made the requested accommodations "all of the time." The other half indicated they made the requested accommodations "most of the time," according to the survey.
Those accommodations included flexible hours, reduction in hours, additional breaks and telecommuting.
What types of health conditions does the ADA cover?
The ADA was amended in 2009 to apply to an array of conditions where a patient might have recurring episodes, such as cancer, Brown said. Employers have the right to ask for documentation for a health condition when an employee requests leave.
Gabrielle said employers should provide their workers with a Department of Labor form for their doctor to provide more detail about their health condition. Medical information must be kept separately from the worker's regular personnel files, according to the Labor Department.
What if I'm denied FMLA leave?
Call a lawyer specializing in employment discrimination. The Florida Bar Association provides referrals. Or file a complaint with a federal, state or local agency that handles employee violations (see detail in box).
Can I be fired if I have a serious health condition?
After 12 weeks of leave, the employee has the right to reinstatement to the same or equivalent position. But if the company happens to be going through layoffs, workers on FMLA or disability leave can't be singled out, but "are not immunized from layoffs that would have otherwise affected you," Gabrielle said.
What should I do if my employer is harassing me to come back to work?
Within the 12 weeks, the employee cannot be forced to come back to work until the doctor certifies it's OK to return. If the health condition is serious, but is not a disability that might provide more leave under ADA, then the employer is not obligated to reinstate the employee after the 12-week maximum, Gabrielle said.
If I decide to sue, could I win a large jury verdict?
It's always possible, but most employees who sue for employee law violations don't win big verdicts. Often the cases are settled or even dismissed. Awards under ADA are limited to $300,000. The Florida Civil Rights Act caps punitive damages at $100,000, but there's no limit for emotional pain and suffering.
Sources: Department of Labor; EEOC; Stearns, Weaver, Miller law firm; Loring N. Spolter, P.A.
Marcia Heroux Pounds can be reached at mpounds@SunSentinel.com or 561-243-6650.