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Employment Rights of Cancer Survivors & Caregivers

Working often fulfills a critical financial and emotional need for cancer survivors and their caregivers. In addition to providing income and important benefits such as health insurance, employment also can provide a source of support, feelings of productivity, and even normalcy. Cancer, however, may create barriers to finding and keeping a job, as well as wreak havoc on the ability to pay bills and to obtain adequate insurance.

While many employers are supportive of their employees after a diagnosis of cancer, some employers - either through outdated personnel policies or an uniformed or misguided supervisor - may treat cancer survivors as well as caregivers unfairly. Some survivors encounter problems such as dismissal, failure to be hired, demotion, denial of promotion, denial of benefits, undesirable transfer, and hostility by co-workers. Survivors and caregivers can best protect themselves from employment discrimination by learning how to advocate for their rights in the workplace.

Employment Discrimination Laws

Under federal law and many state laws, an employer cannot treat you differently from other workers in job-related activities because of your cancer history as long as you are qualified for the job. You may be protected by these laws only if:

  • 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.
  • Your employer treated you differently from other workers in job-related activities because of your cancer diagnosis or history of cancer.
  • At some time your cancer substantially limited your ability to do everyday activities or your employer thought that your cancer so limited you.

The Americans with Disabilities Act (ADA) prohibits some types of job discrimination against people who have or have had cancer by private employers (who have at least 15 employees), employment agencies, and labor unions. Additionally, every state has a law that regulates, to some extent, disability-based employment discrimination. Some laws clearly prohibit cancer-based discrimination, while others have never been applied to individuals with cancer. State laws vary and may even be more protective than the ADA, so it is important to understand your state laws, as well.

Under federal and most state laws, an employer has the right to know only if you are able to do the job at the time you apply for it. A prospective employer may not ask you about your health history, unless you have a visible disability and the employer could reasonably believe that it affects your current ability to perform that job. Once you have been offered a job an employer can ask additional questions about your health, but only if all similarly situated employees are asked those questions. Federal law and most state laws require an employer to provide you a reasonable accommodation. An accommodation is any change, such as in work schedule, use of technology, change in workspace, or even a change in policy, to help you do your job during or after cancer treatment. For example, if you need to take time off for treatment, your employer may accommodate you by letting you work flexible hours until you finish treatment. An employer does not have to make changes that would be an undue hardship on the employer.

In some circumstances, the caregivers of cancer survivors may be protected from discrimination. The ADA prohibits discrimination based on relationship or association with an individual with a disability. Employers may not assume that your job performance would be affected by your need to care for a family member who has cancer. For example, employers may not treat you differently because they assume that you would use excessive leave to care for your spouse who has cancer.  While caregivers are entitled to protection against discrimination in the workplace, they are not entitled to reasonable accommodations.

Medical Leave Laws

You also may have the right to take medical leave under your employer's policies, a state law, or federal law.

The Family and Medical Leave Act (FMLA) is a federal law that requires employers with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave for people who need time off to address their own serious health condition or for family members to care for a seriously ill child, parent, spouse, or a healthy newborn or newly adopted child.

The FMLA requires that the employer have 50 or more employees within a 75 mile radius of the employee's worksite.  If the employer has multiple offices or branches within 75 miles, with a total of at least 50 employees, then the employer is covered by the FMLA.

An employee must have worked for their employer for at least 12 months and 1,250 hours during the last 12 months.  The 12 months of work do not need to be consecutive.  For example an employee could work for one employer for 5 months, leave that job, and return to that job and work another 7 months and then be eligible for FMLA leave.  An employee can look back 7 years in their work history to add up the 12 months, as long as they worked a total of 1,250 hours during the last 12 months. 

While on FMLA leave, an employer must continue to provide health insurance benefits to the employee and any covered dependants.  An employer cannot place the employee on COBRA during the leave period.

An employee is required to give the employer reasonable notice of the need to take time off.  If the need for leave is foreseeable, then the employee must give the employer 30 days notice.  If the leave is unforeseeable, then the employee must give the employer notice as soon as it is practical to do so.

While someone is on unpaid medical leave, disability insurance can help replace some lost wages.  There are different types of disability insurance, including private disability insurance, insurance that you get through an employee benefit, state disability insurance (e.g., California, Hawaii, New Jersey, New York, Puerto Rico, and Rhode Island), and federal long-term disability insurance (SSI and SSDI).

There are also a few states (e.g.,California and New Jersey) and some cities that provide paid medical leave for caregivers.  Check with your state's employment agency for more information.

Job Application Process

If you are looking for a new job, consider these steps to lessen the chance that you will face discrimination because of your cancer history:

  • Do not volunteer that you have or have had cancer unless it directly affects your qualifications for the job. An employer has the right - under accepted business practices and most state and federal laws - to know only if you can perform the essential duties of the job.
  • Do not lie on a job or insurance application. If you are hired and your employer later learns that you lied, you may be fired for your dishonesty. Insurance companies may refuse to pay benefits or cancel your coverage. Federal and state laws that prohibit employment discrimination do not guarantee that all employers will follow the law. If you are asked a question that you think is illegal, give an honest (and perhaps indirect) answer that emphasizes your current abilities to do the job.
  • Keep in mind your legal rights. For example, under the Americans with Disabilities Act, an employer may not ask about your medical history, require you to take a medical examination, or request medical records from your doctor before making a conditional job offer. Once an employer has made a conditional job offer, the employer can require you to submit to a medical examination only if it is required of all other applicants for the job. The medical examination may consider only your ability to perform safely the essential duties of that job.
  • Keep the focus on your current ability to do the job in question. Employers may not ask how often you were absent from past jobs, but they can ask if you can meet the employers' current attendance requirements.
  • Apply only for jobs that you are able to do. It is not illegal for an employer to reject you for a job if you are not qualified for it, regardless of your medical history.
  • If you have to explain a long period of unemployment during cancer treatment, one way to de-emphasize a gap in your school or work history because of cancer treatment is to organize your resume by experience and skills, instead of by date.
  • Seek help from a job counselor or social worker with resume preparation and job interviewing skills. Practice answers to expected questions such as "why did you miss a year of work" or "why did you leave your last job?" Answers to these questions must be honest, but should stress your current qualifications for the job and not past problems, if any, resulting from your cancer experience.
  • If you are interviewing for a job, do not ask about health insurance until after you have been given a job offer. Then ask to see the benefits package. Prior to accepting the job, review it to make sure it meets your needs. 
  • Do not discriminate against yourself by assuming that cancer leaves you unable to work. Although cancer treatment leaves some survivors with real physical or mental disabilities, many survivors are capable of performing the same duties and activities as they did prior to diagnosis. With the help or your medical team, make an honest assessment of your abilities compared with the mental and physical demands of the job.

How to Enforce Your Legal Rights

If you suspect that you are being treated differently at work because of your cancer history, consider an informal solution before leaping into a lawsuit. You want to stand up for your legal rights without casting yourself as a troublemaker.

If you face discrimination, consider the following suggestions:

  • Use your employer's policies and procedures for resolving employment issues informally.
  • If you need some kind of accommodation to help you work, such as flexible working hours to accommodate doctor's appointments, suggest several alternatives to your employer.
  • Provide your employer with information from the United States Equal Employment Opportunity Commission (EEOC) or Job Accommodation Network to support your requests.
  • Educate employers and co-workers who might believe that people cannot survive cancer and remain productive workers.
  • Ask a member of your health care team (physician, nurse or social worker) to write or call your employer to offer to mediate the conflict and suggest ways for your employer to accommodate you.
  • Seek support from your co-workers.

If informal solutions fail, consider several steps to protect your right to file a lawsuit:

  • Keep carefully written records of all job actions, both good and bad.
  • Pause before you sue. Carefully evaluate your goals. For example, do you want your job back, a change in working conditions, certain benefits, a written apology or something else? Consider the positive and negative aspects of a lawsuit. Potential positive aspects include getting a job and reimbursement for monetary damages, protecting your rights, and tearing down barriers for other survivors. Potential negative aspects include long court battles with no guarantee of victory (some cases drag on for five years or more), legal fees and expenses, stress, a hostile relationship between you and the people you sue, and a reputation in your field as a troublemaker.
  • Consider an informal settlement of your complaint. Someone such as a union representative, human resources or personnel officer of your company, or social worker may be able to assist as a mediator. Your state or federal representative or local media may help persuade your employer to treat you fairly. Keep in mind that the first step most government agencies and companies take when they receive a complaint is to try to resolve the dispute without a costly trial.
  • Be aware of filing deadlines so you do not lose your option to file a complaint under state or federal law. You have 180 days from the date of the action against you to file a complaint under the ADA with the United States Equal Employment Opportunity Commission. If you work for the federal government, you have only 45 days to begin counseling with an equal employment opportunity counselor. Under most state laws, you have 180 days to file a complaint with the state agency. If you file a complaint and later change your mind, you can drop the lawsuit at any time.

Excerpts taken from: The National Coalition for Cancer Survivorship (NCCS) booklet, Working it Out: Your Employment Rights as a Cancer Survivor.

We're Here to Help

Call The Leukemia & Lymphoma Society (LLS) at (800) 955-4572 to talk with an Information Specialist for help with the challenges of your diagnosis. LLS is committed to providing information, support and guidance to people living with leukemia, Hodgkin or non-Hodgkin lymphoma, myeloma, myelodysplastic syndromes or myeloproliferative diseases. LLS also provides information to healthcare professionals involved in the care of patients with these diseases.

Other Resources

Below are resources and organizations that may be able to help you with your employment concerns. You can also visit LLS's Resource Center for a list of more organizations.

U.S. Equal Employment Opportunity Commission (EEOC)
Contact:
202-663-4900 or 800-669-4000
EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

Job Accommodation Network (JAN)
Contact:
800-526-7234
Offers free, expert, and confidential guidance on workplace accommodations and disability employment issues. Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace.

U.S. Department of Labor Wage & Hour Division
Contact:
866-487-2365
The Department of Labor enforces wage and hours laws, including the Family and Medical Leave Act.

State Fair Employment Agencies - see Triage Cancer Website for list

Reviewed by Joanna Fawzy Morales, Esq.

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last updated on Wednesday, January 22, 2014
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