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While many employers are supportive of their employees after a diagnosis of cancer, some employers - either through outdated personnel policies or an uniformed or misguided supervisor - may treat cancer survivors as well as caregivers unfairly.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 and many state laws, an employer cannot treat you differently 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 be even 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 and most state laws require an employer to provide you a reasonable accommodation, which is any change — such as 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 your treatment is complete. 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 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.
Reviewed by Joanna Fawzy Morales, Esq. January 2014.