Employee refuses chemotherapy

FJN

We have a complex situation for which I'm seeking your wisdom. One of our employees has refused chemotherapy treatment because of possible kidney failure later in life. They have been out on short term and now long term disability since spring. They now have selected a naturopath, who has indicated this employee is unable to work for two more months. We believe this employee was able to work two months ago but has chosen not to. My question is do we have any recourse because they refused treatment and/or because this isn't a standard medical treatment?

Don D

FJN: 29 CFR 825.118 (Who is a health care provider?) lists those generally meeting this category. Obviously it covers doctors of medicine and osteopathy, podiatrists and dentists, but, also includes psychologists, optometrists, chiropractors, nurse practitioners, midwives, social workers licensed by the state, Christian Science practitioners and some others. I'm not sure what a naturopath's license or expertise is so I can't say. I think I might, though, call my own physician or the clinic your company uses and ask if the person's license reaches the level defined by the Act. If so, you don't have the flexibility to reject his recommendation. If you are in doubt or can't reach a conclusion about the license or credentials of the person, I recommend you accept it and come down on the side of being safe.

Theresa Gegen TX

The question seems to relate to your company policy and the ADA. Clearly the employee has exhausted FMLA (if out since spring). Does the employee have any leave left under the company policy? If so, and they have a medical provider who says they can't work, I would let them take it, unless your company policy gives you some type of right to challange the medical information (for example to get a second opinion). As to the employee's refusal to get chemotherapy, I would not go there. That is the employee's business.

If the employee has exhausted leave, the question becomes a bit more complicated udner the ADA. If the employee is disabled, the question will be is 2 more months off a reasonable accomodation? I hate to tell you this, but some court's have held generous leave policies against employers and said, well the employer has covered the job for this many months already, what is two more?

Before taking any adverse action against this employee, I strongly suggest that you meet with employment law counsel who can spend the time carefully going over all of the fact and providing a detailed risk assessment.

Good Luck!