Your Rights as a Cancer Patient in the Workplace
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Cancer strikes many of us: 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.
Fortunately, people living with cancer have rights in the workplace. There are several federal and state laws that protect people with cancer or who have a history of cancer from workplace discrimination.
The Americans with Disabilities Act (ADA) prohibits many employers (governmental employers and private employers with 15 or more employees) from discriminating against employees or job applicants based on disability—which includes cancer. This means that the employer must reasonably accommodate an employee who has cancer (suggested accommodations are listed below).
Additionally, most states now 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 five or more employees. (To find out what the anti-discrimination statutes that apply to your work situation are in your state, contact your state Department of Labor or anti-discrimination agency.)
When is Cancer a Disability under the ADA?
Cancer is not always or necessarily a “disability” for purposes of the anti-discrimination laws. Rather, cancer becomes a disability under federal law when it meets the general definition for a disability: 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. It is the effect of the cancer or its treatment which makes it a disability, not the disease itself.
However, even when cancer doesn't limit a person's major life activities it is a disability when 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 (1) the side effects of the cancer treatment, or (2) the fear that she may need to take more time off for future treatment. In firing her, the employer may well have violated the law prohibiting discrimination based on a perceived disability, because if the employer chooses to treat the employee as disabled—as limited in a major life activity—the employee will be treated as disabled for purposes of determining whether that employer violated the anti-discrimination laws.
What If Your Cancer Does Not Qualify As a Disability under the ADA?
Suppose you are relatively fortunate in that you have cancer, but it doesn’t “substantially interfere with major life activities”? In that instance, the protections of the ADA (or of state laws that use essentially the same criteria) do not apply to you.
However, you may still be able to request extended 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 located within a 75 miles radius; to quality, you have to be employed by this employer for at least a year and worked at least 1,250 hours in the last 12 months. Furthermore, time off under FMLA is unpaid, so using this leave may represent a financial hardship.
Getting a Job After a Cancer Diagnosis
Based on the ADA, a potential employer cannot ask about a medical condition before a job offer (or require you to take a medical examination at the application or interview stage).
There's no reason to volunteer that information unless you need to because of the cancer or cancer treatment. For instance, you might need to ask for some extra time to complete a pre-employment test (assuming the employer requires testing) 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 the job. They are allowed to make sure you can perform the job you were hired for, either with or without accommodations. 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. (There is a practical or functional limit to this confidentiality: management employees with a legitimate need for this information, like your supervisors or human resources, may have access to it.)
If your employer happens to already know that 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. Knowledge is the keystone: the employer must know in some way of your disability and the need for an accommodation; understandably, they are not held accountable for not providing what they did not know they had to provide. If you do make a request for an accommodation, it's a good idea to do it in writing. This creates invaluable documentation in the event of a later dispute or legal action involving the failure to accommodate you.
As always, review your particular state’s laws for additional rights or procedures. For example, 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 (things which are not a core or essential part of your job) to another employee; and
- reassignment to another job or position within the company, assuming it is one you can do (e.g. are qualified for), which the employer needs, and for which they have a job opening.
The employer’s legal obligation to provide accommodations to meet the employee’s need is not unlimited, however.
An employer is NOT required to provide accommodation of a disability, including cancer, if doing so would cause "undue hardship"—which means both unreasonable expense and/or unreasonable disruption to work—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.
If you can’t do your job, your employer does not need to invent or create a new job—one it doesn’t currently have or need—for you. This comes up in the context of disabilities, when employees seek, for example, “light duty”. The employer does not have to create a light duty job just to accommodate the employee.)
Though you may have rights, so does your employer. Your employer is not your benefactor.
Steps to Take if Your Employer Refuses to Follow the Law
Hopefully 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. (If state law, but not federal law is violated, contact your state’s equal or civil rights agency.) Check the federal government section of the phone book for the nearest EEOC office.
If your employer starts mistreating you or retaliates against you or you believe you are not receiving the proper accommodation(s), 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. When possible, you want witnesses and documentation to corroborate your version of what happened. Providing specific and clear documentation is invaluable to prove your point in any legal confrontation 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.
As a guide, the EEOC provides helpful information on Cancer in the Workplace.