Article previously published in the Cutaneous Lymphoma Foundation's Forum Spring/Summer 2012 newsletter.
People living with cancer frequently ask this question.
Work is an important part of our lives. It provides income, health insurance, social network of support, sense of normalcy, meaning, purpose and recognition. Since health insurance is often linked to employment, patients’ and caregivers’ ability to maintain their jobs is critical to continue treatment and follow-up care. Many of the advances in the treatment of cancer have made it possible to return to work. New ways to manage treatment side effects make it possible for many to work while receiving chemotherapy, targeted and radiation treatments. The trend of delivering treatment in the outpatient setting and home as opposed to the inpatient setting has reduced time away from work. There are a number of laws protecting the rights of employees with cancer and their caregivers. It is very important for you to know the legal protections that exist when you have cancer and are working or are re-entering the workforce.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) was enacted in 1990 by Congress and took effect in 1992. The Americans with Disabilities Act is a national mandate to eliminate discrimination against individuals with disabilities. Organizations with 15 or more employees must comply with ADA guidelines. People with cancer are protected under ADA. The following criteria must be met to come under the mantle of protection of the ADA:
- Are you a “disabled person” under ADA?
- Are you qualified for the job?
- Can you perform the essential functions of the job?
- Has your employer provided you with a reasonable accommodation?
- Will your accommodation cause “undue hardship” to your employer?
- Do you create a direct threat to your own or others health or safety?
- The major workplace accommodation that most people with cancer require is flexibility in their work hours. They may need to leave early or come in late because of scheduled medical appointments. If you require flex time, it is important to request a workplace accommodation by disclosing to your supervisor the cancer diagnosis so that the flex time comes under the protection of the ADA. Otherwise, if no reason is given for a request of flex time, the employer could document time and leave problems, which could jeopardize job security.
The ADA protects people living with cancer when they are applying for a job. The ADA prohibits an employer from asking any questions regarding health history or current medical status during job interviews or any time in the pre-offer stage. People living with cancer, as well as survivors, are not required to share their health history with prospective employers. Once offered a job, if the company requires that all employees undergo a physical exam or drug testing post job offer, then it is prudent to provide full disclosure to the medical personnel conducting the exam.
For more information on the ADA, call their toll free information line at 800-514-0301 to speak with an ADA specialist or visit their website at www.ada.gov.
Family and Medical Leave Act
The Family and Medical Leave Act (FMLA), enacted in 1993, enables both the person with cancer and their family members to take an unpaid leave for health problems that make the employee unable to perform job functions. One may take up to 12 weeks of unpaid leave within one year. The employer is required to continue health benefits during FMLA leave. The Family and Medical Leave Act applies to organizations with 50 or more employees. The employee must have worked with his/her employer for at least one year.
- The 12 week leave does not have to be taken all at once. Intermittent FMLA allows you to take time in blocks, such as an hour at a time.
- FMLA allows you to use accrued paid annual leave or accrued sick leave during family or medical leave.
- The employer is not required to reinstate an employee who takes off more than 12 weeks leave in a year.
- The employer may request a brief medical certification by a doctor or other health care provider.
To learn more about the FMLA, visit the Department of Labor website at www.dol.gov.
Equal Employment Opportunity Commission
Equal Employment Opportunity Commission (EEOC) is a federal agency, which was created to address the needs of citizens who have been discriminated against in the workplace. An employee who feels that there is subtle or blatant discrimination in the workplace should contact the EEOC directly before retaining a lawyer. The EEOC is a very useful resource and underutilized by the public. The EEOC is the federal enforcer of ADA and FMLA. EEOC will investigate any allegations against an employer or perceived discrimination, inappropriate behavior and policies.
The EEOC staff are helpful for anyone currently working, as well as for those seeking employment, who have questions about the job interview process and pre-offer phase of work reentry. EEOC is invaluable in assisting with workplace complaints. Knowledge of the backing of the EEOC provides strength to people with cancer who are either reentering the workforce or who are in the workforce. The EEOC can be contacted by calling 800-669-4000 or visit www.eeoc.gov.