In understanding an employer's legal requirements to accommodate an employee with a cancer diagnosis, we have provided the following excerpts from The National Coalition for Cancer Survivorship (NCCS) booklet Working it Out: Your Employment Rights as a Cancer Survivor.
Your Employment Rights as a Cancer Survivor
Work fulfills a critical financial and emotional need for most cancer survivors. In addition to providing income and important benefits such as health insurance, employment also can be a source of self-esteem. 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 health insurance.
Although most employers treat cancer survivors fairly and legally, some employers - either through outdated personnel policies or an uniformed or misguided supervisor - erect unnecessary and sometimes illegal barriers to survivors' job opportunities. 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 can best protect themselves from employment discrimination by learning how to advocate for their rights in the workplace.
How Employment Discrimination Laws Protect Cancer Survivors
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 treatment or history.
- 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 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 cancer-based discrimination. State laws also vary as to which employers - public or private, large or small - must obey the law.
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. An employer may ask you detailed questions about your health only after you have been offered a job.
Federal law and most state laws require an employer to provide you a reasonable accommodation. An accommodation is a change, such as in work hours or duties, 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 unduly costly or disruptive.
In some circumstances, the family members of cancer survivors may be protected from discrimination. The ADA prohibits discrimination based on relationship or association with a disabled person. 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.
Additionally, employers that provide health insurance benefits to their employees for their dependents may not decrease benefits to an employee solely because that employee has a dependent who has cancer. State laws, however, do not protect you if an employer treats you differently because a family member has cancer.
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.
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 family members who need time off to address their own serious health condition (which includes most cancers) or to care for a seriously ill child, parent, spouse, or a healthy newborn or newly adopted child. An employee must have worked at least 25 hours per week for one year to be covered and must make reasonable efforts to schedule foreseeable medical care so as to not to unduly disrupt the workplace. An employer must continue to provide benefits - including health insurance - during the leave period.
The ADA does not require employers to provide health insurance. The ADA and some state laws, however, do require those employers who offer health insurance to do so fairly. For example, if your employer provides health insurance to all employees with jobs similar to yours, but does not provide you health insurance, then the employer's refusal may be considered discrimination under the Americans with Disabilities Act. The employer must prove that the failure to provide health insurance is based on legitimate actuarial data (statistics) or that the insurance plan would suffer serious financial problems. For example, if your employer is a small business that can prove it is unable to obtain an insurance policy that will cover you, the employer may not have to provide you the same health benefits provided to your coworkers.
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.
How to Avoid Discrimination
Lawsuits are neither the only nor necessarily the best way to fight employment discrimination. State and federal antidiscrimination laws help cancer survivors in two ways. First, they discourage discrimination. Second, they offer remedies when discrimination does occur. These laws, however, should be used as a last resort because they can be costly, time consuming, and not necessarily result in a fair solution.
The first step is to try to avoid discrimination. If that fails, the next step is to attempt a reasonable settlement with the employer. If informal efforts fail, however, a lawsuit may be the most effective next step.
If you are looking for a new job, you can take several 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 refrain from illegally asking survivors about their cancer histories or gaps in education or employment. 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, if possible, explain it in a way that shows your illness is past, and that you are in good health and are expected to remain healthy. 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.
- Offer your employer a letter from your doctor that explains your current health status, prognosis and ability to work. Be prepared to educate the interviewer about your cancer and why cancer often does not result in death or disability.
- 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. For more information on how to choose an insurance plan, see "What Cancer Survivors Need to Know About Health Insurance," published by the National Coalition for Cancer Survivorship.
- If possible, look for jobs with large employers because they are less likely than small employers to discriminate.
- 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.
- 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 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.
To file a lawsuit, you must follow the procedures established by each law:
ADA: If you believe you have been treated differently by an employer covered by the Americans with Disabilities Act because of your cancer history, you must file a complaint with the Equal Employment Opportunities Commission (EEOC) to enforce your rights. To obtain the location of your regional EEOC office, call the EEOC Public Information System in Washington, DC at 1-800-669-4000. You can obtain publications from the EEOC that explain the Americans with Disabilities Act and how to enforce your rights under the law by calling 1-800-669-EEOC.
FMLA: To file a lawsuit under the Family and Medical Leave Act, you may choose between filing a lawsuit in court or filing a complaint with the Employment Standards Administration, Wage and Hour Division of the United States Department of Labor. Check your local telephone book under "United States Government" for your regional office of the Wage and Hour Division. Most complaints filed with the Wage and Hour Division are resolved informally.
State Laws: Most states have a state agency that enforces the state fair employment practices law. Some states permit you to file a lawsuit in state court to enforce your rights. For more information about the laws in your state, contact your state division on civil rights or human rights commission, or an attorney who is experienced in job discrimination cases. The EEOC Public Information System at 1-800-669-4000 can help you locate the appropriate state enforcement agency. Also check your local telephone book under state government.
Even if your legal rights were violated, there is no guarantee that a public agency or court will provide you a fair remedy. A trained job counselor, social worker, nurse or clergy may help you deal with the personal issues that result from employment discrimination due to your cancer history.
Written by Barbara Hoffman, J.D., General Counsel, NCCS
© 2000 by the National Coalition for Cancer Survivorship