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Answers From Our Expert: Work & Employment

Q: I have a patient who has been very ill since he started dialysis. His employer reduced his hours to 12 per week so he could maintain his insurance, but the patient has been able to work only 9 hours per week. Can he be fired for missing work due to illness?

A: Under the Americans with Disabilities Act, an employer who employs 15 or more employees must not discriminate against a person with a disability who is able to do the essential functions of his job. If your patient's employer allowed him to use his entire 12 weeks of FMLA, all his vacation and sick time, and let him work reduced hours and keep his insurance, it sounds like his employer has been more accommodating than most.

The question at hand is: Can your patient perform the essential functions of his job? Because he was working full-time prior to starting dialysis and now can work only 9 hours per week, it sounds like the answer might be "no."

If your patient thinks he has a legal case against his employer, he should explain his situation and what his employer has done to accommodate his health condition to the Equal Employment Opportunity Commission (EEOC). The EEOC is charged with enforcing the Americans with Disabilities Act, and can advise him. Look for the nearest EEOC office in the government pages of your phone book or on the Internet; the number in Washington, DC, is (800) 669-4000.

Before filing a complaint, however, your patient and his dialysis team might want to consider these things:

  • If he is very debilitated and/or his is work too demanding for him, can he do another job at his company until his health and physical functioning improve?
  • Can he change his dialysis schedule? For example, can he go to dialysis after work rather than before? Or, if he dialyzes on MWF, can he change to T, Th, S so he can have 3 days available to work?
  • Can he do his dialysis at home? PD and home hemodialysis allow patients more flexibility to schedule treatments that don't interfere with work.
  • Does he have any medical problems that affect his ability to work, including fatigue due to anemia, side effects from medications, insufficient dialysis due to missed or shortened treatments, poor nutritional status, depression and/or muscle weakness due to lack of exercise? If so, can these be treated? Correction of medical problems may make it easier for him to work more hours.
  • Who might be encouraging him to take disability (spouse, family, friends, a physician, employer, etc.)? They may need education on the long-term negative effects of taking disability on patients' health and well-being.

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