Your Rights as a Cancer Patient in the Workplace
Over 10 million Americans are living with a history of cancer, and more than 40 percent of those diagnosed each year are working-age adults. The Americans with Disabilities Act (ADA) prohibits employers, specifically governmental entities and private employers with 15 or more employees, from discriminating against employees or qualified job applicants based on disability, including cancer. Additionally, most states have their own laws prohibiting disability discrimination with some of these laws providing even more protection than federal law. For instance, in California, the law relating to disability discrimination, including discrimination based on cancer, applies to employers with only 5 or more employees.
When is Cancer a Disability under the ADA?
Cancer becomes a disability under federal law when the disease or its side effects has or had a serious impact on one or more "major life activities" such as working, sleeping, eating, shopping, household chores, child care, cooking, and interacting with others.
Cancer is also considered a disability when it doesn't limit a person's activities, yet the employer treats the individual as if it does. For example, a computer programmer completes cancer surgery and returns to work. She is able to perform her job, but the employer fires her anyway, assuming that she won't be able to do her job as well because of the side effects of the cancer treatment or even because her cancer might recur requiring her to take more time off. In firing her, the employer may have violated the law prohibiting discrimination based on a perceived disability.
If you have cancer and the disease is not considered a disability under federal law because it doesn't "substantially interfere with major life activities," you can still request time off for doctor appointments or other cancer care based on the federal Family and Medical Leave Act (FMLA). The FMLA , however, only applies to employers with 50 or more employees and time off is unpaid. Click here for an article on the Family and Medical Leave Act.
Getting a Job After a Cancer Diagnosis
Based on the ADA, a potential employer cannot ask about a medical condition or require you to take a medical examination at the application or interview stage of the hiring process. There's also no reason to volunteer that information unless you need to due to cancer or cancer treatment. For instance, you might need to ask for some extra time to complete a pre-employment test due to radiation-induced fatigue. This would be a request for an "accommodation" of your disability.
Keeping your Job When You've Had a Cancer Diagnosis
After you've been offered the job, an employer is allowed to ask if you have a disability for which you'll need an accommodation to perform the basic duties or "essential functions" of it. Your employer must keep confidential any medical information you provide-even, for instance, if co-workers ask your supervisor why you're taking extra breaks or voice concern that you've lost a lot of weight.
Moreover, if your employer happens to already know you have a disability and need an accommodation, the ADA requires the company to provide it, even if you have not yet made an express request. If you do make a request for an accommodation, it's a good idea to do it in writing. In California, employers and employees must work together to develop an accommodation for your cancer and cancer treatment.
Here are a few accommodations available to cancer patients in full- and part-time employment:
- leave for doctors' appointments and/or to seek or recuperate from treatment;
- periodic breaks or provision of a private area to rest or to take medication;
- adjustments to a work schedule;
- permission to work at home;
- modification of office temperature;
- permission to use work telephone to call doctors;
- reallocation or redistribution of marginal tasks to another employee; and
- reassignment to another job.
An employer is NOT required to provide accommodation of a disability, including cancer, if doing so would cause "undue hardship" to the company. Whether a disability will cause "undue hardship" is determined by a variety of factors including the employer's size, financial resources, and the nature of the business.
What to Do if Your Employer Refuses to Follow the Law
It is to be hoped that your employer will follow the law prohibiting discrimination based on your cancer. If not, you may want to file a complaint with the federal agency that enforces the ADA, the Equal Employment Opportunity Commission (EEOC), and/or consult with an employment law attorney. Check the federal government section of the phone book for the nearest EEOC office. Contact an employment attorneyto discuss your situation.
If your employer starts mistreating you or retaliates against you after you've contacted an attorney or the EEOC, make sure you keep written track of your employer's conduct, including the relevant date(s) and the names of other people who may have seen what happened. For more information on Cancer in the Workplace and the ADA read this EEOC document.
Good luck and stay well!