How Employment Discrimination Laws Protect Cancer Survivors
- you are qualified for the job (you have the necessary skills, experience and education) and you can do the essential duties of the job in question; and
- your employer treated you differently from other workers in job-related activities because of your cancer treatment or history.
The ADA and many state laws prohibit discrimination based on genetic information relating to diseases such as cancer. For example, an employer may not ask you for the results of a genetic test or treat you differently because of your genetic history.
An employer does not have to make changes that would be an “undue hardship” on the business or other workers. “Undue hardship” refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business. For example, if you have to miss a substantial amount of work time and your work cannot be performed by a temporary employee, your employer may be able to replace you. In most circumstances, an employer does not have to provide an accommodation that would violate an established seniority system.
The key to obtaining a reasonable accommodation is to ask your employer for a specific accommodation. Employers provide most survivors the accommodations they request. (Breakaway from Cancer, 2006). Time-related accommodations, such as flextime and time off for doctors appointments, are the most desired accommodations. Working from home may also be a reasonable accommodation under certain circumstances.
- have a disability; or
- have a history of a disability; or
- are regarded by others as having an impairment.
A disability is an impairment that substantially limits your ability to do major life activities, such as walking, breathing, and concentrating.
The ADA also defines major life activities to include “functions of the immune system” and “normal cell growth.” Therefore, if your cancer substantially limits your immune system or normal cell growth, you have a disability as defined by the ADA. Moreover, if your cancer is in remission, you have a disability if your cancer would substantially limit a major life activity when active.
Although most state laws cover cancer survivors from the time of diagnosis, some state laws do not cover survivors who are cancer free because they protect only people with serious physical disabilities. Contact your state “civil rights,” “human rights” or “human relations council” to learn more about your state law. (See p. 17 for more information about how to locate your state agency.)
Different state and federal laws define “disability” in a variety of ways. For example, you may have a “disability” under the ADA, yet not have a “disability” as defined by the Social Security Act. The application for or receipt of Social Security Disability Income benefits does not automatically bar an employee from making a claim under the ADA.
The determination of whether a person has a disability must be made without regard to the effects of medication or prosthetic devices. Therefore, if you take medication that helps you do everyday activities, but who would be substantially limited without the medication, you are a person with a disability under the ADA.
Similarly, if you lost a limb to cancer and have full mobility only with the use of a prosthesis, you are a person with a disability under the ADA.
Employers may be required to change leave policies as a reasonable accommodation. Employers are not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.
The Family and Medical Leave Act affects cancer survivors in the following ways:
- provides 12 weeks of unpaid leave during any 12 month period;
- requires employers to continue to provide benefits—including health insurance—during the leave period;
- requires employers to restore employees to the same or equivalent position at the end of the leave period;
- allows leave to care for a spouse, child, or parent who has a “serious health condition”;
- allows leave because a serious health condition renders the employee “unable to perform the functions of the position”;
- allows intermittent or reduced work schedule when “medically necessary” (under some circumstances, an employer may transfer the employee to a position with equivalent pay and benefits to accommodate the new work schedule);
- requires employees to make reasonable efforts to schedule foreseeable medical care so as to not unduly disrupt the workplace;
- requires employees to give employers 30 days notice of foreseeable medical leave or as much notice as is practicable;
- allows employers to require employees to provide certification of medical needs and allows employers to seek a second opinion (at employer’s expense) to corroborate medical need;
- permits employers to provide leave provisions more generous than those required by the Family and Medical Leave Act;
- allows employees to “stack” leave under the Family and Medical Leave Act with leave allowable under state medical leave law; and
- requires employees to follow the employer’s rules regarding when vacation leave can be used as family and medical leave.
- not hiring an applicant for a job or training program;
- firing a worker;
- providing unequal pay, working conditions, and benefits such as pension, vacation time, and health insurance;
- punishing an employee for filing a discrimination complaint; or
- screening out disabled employees.
Every state has laws that regulate the insurance industry. For example, some states forbid insurance companies from considering your cancer history when issuing a new policy. Contact your state insurance commissioner regarding your state law rights. Additionally, if you have health insurance through a group plan at work, one federal law—ERISA—prohibits your employer from firing you to prevent you from collecting your benefits.