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When you received a birthday card from the AARP on your 50th birthday, the first thought that went through your mind was probably, “I’m much too young to think about any of this.” Even though 65 is generally considered the usual retirement age in the United States, a lot of people continue working for much longer than that, and not just people whose jobs are so much fun that they hardly feel like working, like economists and rock stars. Even people whose jobs are not especially glamorous continue to work even when they are old enough and financially stable enough to retire. Perhaps, when you were a student, one of the cooks in the cafeteria celebrated her 75th birthday or even her 80th. As an employee of the school system, she probably would have been entitled to a pension, but she preferred to continue working; seeing her coworkers and the students gave her something to look forward to every day. Participation in the workforce keeps you young; retired people in their 60s and 70s are more likely to show signs of dementia and cognitive decline than people of the same age who are still working. Regardless of financial situation, health is often the main factor that determines when people retire. A lot of people retire when they are no longer healthy enough to continue working, regardless of how much money they have saved for retirement.
Does a Mesothelioma Diagnosis Automatically Force You to Retire?
Most people are at least 50 years old when they receive a diagnosis of mesothelioma, but even if you were already planning your retirement party when you started experiencing mesothelioma symptoms, the diagnosis can really mess with your plans. Finding out that you have cancer changes almost everything that you think and feel about the present and future. Looking forward to going back to work after you finish your cancer treatments might be what keeps you going and makes it easier to recover from surgery and tolerate the side effects of chemotherapy.
On the other hand, you might feel that work is the farthest thing from your mind, and that everything about the future is uncertain. Some people, upon receiving a cancer diagnosis, decide that their main priority is letting their family and friends know how much they appreciate them and being grateful for the time that they have left on Earth. You might decide to approach life one day at a time. By this logic, it makes sense to take an indefinite leave of absence from work. For now, your goal is to make it through surgery and chemotherapy and to be grateful whether what awaits you on the other side is a return to work or an early (or on-time) retirement.
Of course, this does not address the financial decisions involved in retirement or returning to the workforce. Just as every mesothelioma patient has a unique medical situation, every patient also has a unique financial situation. Illnesses much less severe than mesothelioma can take a major toll on your finances; getting a mesothelioma diagnosis has never made anyone wealthy. The good news is that the law offers protections for all employees who need to miss work because of an illness, as well as protections specific to people who developed mesothelioma because of occupational exposure to asbestos.
The Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) is a federal law that requires employers to allow employees to take an unpaid leave of absence from work for up to 12 weeks. All employers except the smallest businesses must provide FMLA leave, and employees who have been working full-time (40-hour work weeks) for their employers for at least a year are eligible to take FMLA to leave. Employees may use their FMLA leave to manage their own serious health conditions, to care for a family member who is experiencing a serious health condition, or to care for a newborn or newly adopted child. In the context of malignant mesothelioma, this means that you can take an FMLA leave from your job to undergo cancer treatments. It also means that your spouse can take an FMLA leave from his or her job to take care of you during your treatment.
Requesting or taking an FMLA leave is a legally protected activity, which means that it is against the law for your employer to take adverse action against you as a result of your request for an FMLA leave. Examples of adverse actions include unfairly negative performance reviews, harassment (also known as a hostile work environment), denial of promotions or raises reduction in pay, involuntary change of schedule, work location, or duties, and termination of employment. In other words, if you take an FMLA leave, your employer must allow you to return to your same job at the same rate of pay after the FMLA leave ends.
FMLA leave is unpaid leave; as of 2022, there are no federal laws requiring employers to provide paid medical leave to employees. Some states have paid leave programs that work similarly to FMLA, except that the employee is entitled to receive some or all of his or her salary during the leave of absence. In other states, it is up to the individual employer to decide whether to offer employees paid leave. If your company allows you to accrue paid medical leave and vacation pay, you might be able to use yours to keep getting paychecks while you are on leave for mesothelioma treatment. Some employers allow employees to donate their unused leave to each other, so your coworkers might be willing to share some of their accrued leave with you. A mesothelioma lawyer or employment lawyer can answer your questions about paid leave and FMLA in more detail.
Disability Benefits Through Workers’ Compensation
More than 80 percent of mesothelioma diagnoses in the United States can be directly linked to occupational exposure to asbestos; therefore, mesothelioma is more common in people who have worked in construction, building renovation, and shipbuilding than in other industries. Federal law requires employers to carry workers’ compensation insurance and allow employees who get injured at work while doing their jobs to receive payment for their treatment by filing a workers’ compensation claim; like requesting an FMLA leave, filing a workers’ compensation claim is a legally protected activity. Although the first thing people associate with workers’ compensation is traumatic injuries resulting from accidental falls at work, it also covers occupational diseases.
Mesothelioma is considered an occupational disease for people who experienced asbestos exposure at work, such as those whose job duties include renovating old buildings to remove asbestos. Therefore, workers’ compensation benefits should pay for your mesothelioma treatments. You might even be able to get disability benefits from your employer through workers’ compensation. If you are only out of work temporarily while you are undergoing treatment, then you should apply for temporary disability benefits. If you will not be able to return to work even after you finish your treatments, then you should apply for permanent disability benefits. If you are able to work, but only in a less physically demanding role that pays less than your previous job, partial disability benefits can make up some of the difference in your income.
Requesting Reasonable Accommodations From Your Employer Pursuant to the Americans With Disabilities Act
Even if you are not eligible to file a workers’ compensation claim related to your mesothelioma diagnosis, you can still request accommodations from your employer if you plan to continue working while undergoing treatment. The Americans With Disabilities Act of 1990 (ADA) requires employers to make reasonable accommodations for employees and applicants with disabilities. In order to receive accommodations, you must present a letter from your doctor to your employer. The letter states the accommodations that you require, but it does not indicate your diagnosis. For example, the accommodation request letter might indicate that you need dictation software on your work computer, but it will not indicate that your problems with vision or typing are a result of your mesothelioma treatments. The letter might also request that you perform your duties remotely instead of in the office, but it will not say that you have had mesothelioma surgery and chemotherapy and frequently experience fatigue and shortness of breath.
Requesting accommodations for a disability is a legally protected activity, just like filing a workers’ compensation claim or requesting an FMLA leave. This means that your employer cannot fire you or otherwise retaliate against you in response to your request for accommodation. This does not necessarily mean that your employer is obligated to give you the exact accommodation that you request. Often, there is a negotiation process whereby the employer and employee reach an agreement about what is reasonable. Accommodation is only considered reasonable if it does not cause an undue financial burden on the employer; what kinds of accommodations the employer can afford to make depends on the size of the company, its revenues, and how many workers it employs.