Bridge over troubled water: Commercial diver with cancer can take ADA claim to trial

A federal district court in New Orleans found a jury must decide if a commercial diver was discriminated against after being terminated for chemotherapy and cancer treatments based on Association of Diving Contractors International (ADCI) standards. The opinion demonstrates the difficulties employers face in accommodating employees and following industry standards.

Facts

A marine services company hired the commercial diver to provide underwater welding, propeller repairs, and inspections. In late 2015, the diver was diagnosed with cancer. From mid-December 2015 to early January, he received daily chemotherapy and radiation while still working full-time under restricted duties.

In April 2016, the diver learned he would need extensive surgery and additional treatment to remove the cancer. As a result, he applied for and took unpaid leave under the Family and Medical Leave Act (FMLA). Following successful surgery, the diver’s oncologist performed an ADCI medical exam and determined the diver would be cleared to return to work within four weeks. The diver communicated the news to his employer, who, in turn, terminated him.

The company told the driver he was being terminated because (1) he had cancer treatments and (2) the ADCI standards provide that individuals aren’t qualified to dive if they have “[u]ntreated or persistent/metastatic or other significant malignancies including those that require chemotherapy and/or radiation therapy unless five years after treatment with no evidence of recurrence.”