Cancer is serious business. Even when cancer treatment successfully halts the disease, the recovery process can take months or years. In the meantime, cancer patients may have difficulty maintaining a normal lifestyle. The burdens of coping with cancer and/or cancer recovery may impact day-to-day activities, including work.
It’s not uncommon for employees undergoing cancer treatment to require a reduced or modified work schedule or some other accommodation that an employer may not be eager to provide. It’s also not uncommon for conflicts to occur between the employee and the employer when the employee has requested health-related accommodations. What can an employee with cancer do to defend their employment rights? The Americans with Disabilities Act (ADA) applies to all employers with at least 15 employees, in addition to all state and local government organizations.
Cancer and the Americans with Disabilities Act
You probably know already that the ADA protects the employees with mental or physical impairments. Does this protection extend to employees with cancer? Yes, under the ADA, cancer is considered a recognized disability (like blindness or deafness) and is entitled to legal safeguards. Cancer patients cannot legally be discriminated against on the basis of their medical issues. They cannot legally be fired, demoted, denied benefits, or otherwise subjected to unequal treatment in the workplace because of their illness or history of illness.
Employees with cancer are also entitled to “reasonable accommodations” for their health issues. Common accommodations for cancer patients may include:
Modified work schedule
Work-from-home arrangement
Rest breaks to cope with fatigue
Reassignment of non-essential tasks to other employees
Use of work email or computer to communicate with doctors, even if personal use of company computers or email is otherwise prohibited
The ADA may also protect employees who are close relatives of cancer patients. The ADA recognizes that relatives of cancer patients (or any other disabled persons) may be targeted for discrimination by association if the employer believes that caretaking duties are interfering with the employee’s productivity.
ADA Rights of Employees with Cancer
Under the ADA, employees with cancer have certain rights, including the following:
Employees (or prospective employees) with cancer have no duty to inform the employer of their medical history, their current medical condition, or any treatment they may be undergoing. Employers are only permitted to ask whether the employee will be able to perform their duties. (Exception: Employers can ask health-related questions after a job offer is extended, but only if all employees are asked these questions, and the employer is prohibited from taking adverse action based on this knowledge.)
The ADA prohibits reprisal for employees who do reveal their cancer diagnosis. Some employees may choose to disclose their illness if they need accommodations. Others may have medical issues too obvious to hide. Under the ADA, employers are prohibited from taking an adverse action in response to any kind of disclosure.
Employees can wait until after they have accepted the job to request any workplace accommodations (e.g., if they need to come in late on certain days due to chemotherapy treatment). Employers may reject accommodation requests if the request would actually impose “undue hardship” on the organization, but employers are prohibited from responding to the request with an adverse action.
Cancer and the Family and Medical Leave Act
In addition to the benefits of the ADA, many employees are covered by the Family and Medical Leave Act (FMLA), which applies to companies with at least fifty employees. FMLA is available to employees who have been with the company for one year or more and have worked at least 1250 hours in the prior year. FMLA allows employees to take up to 12 weeks of unpaid leave over a 12-month period to deal with their own medical issues (such as cancer treatment and recovery) or those of a qualified relative. FMLA prohibits the employer from retaliating when an employee needs to utilize this kind of leave.
Atlanta’s employment lawyers at Barrett & Farahany, LLP are here to advise you and help you protect your rights under federal labor laws.
