Working Through Cancer? Know Your Rights.

To say that a cancer diagnosis is an overwhelming experience is an understatement.

Upon hearing “You have cancer,” your mind is likely filled with thoughts and concerns about treatment, the impact of your diagnosis on family, financial matters, and your own mortality—among many other issues. But what about your job? How will this diagnosis affect your current work—or your ability to work in the future? Are there specific laws related to these issues?

These questions and others are important to consider when you’re facing a cancer diagnosis because there are employment-related legal issues that may come into play. And, unfortunately, one in four cancer survivors will face some form of cancer discrimination in the workplace. The good news is, armed with information about the issues you may face and your legal rights, you can learn to navigate this aspect of your diagnosis.

First, learn the lay of the land. Here are just a few of the many employment-related legal issues:

  • Asking your employer for job accommodations while you go through treatment
  • Receiving negative performance evaluations after disclosing your medical condition
  • Being fired from your job after disclosing your medical condition
  • Returning to the workforce and whether you should disclose your medical condition to a potential employer
  • Maintaining your health insurance benefits and income while taking time off work

In addition to workplace discrimination, women diagnosed with cancer may face challenges that include difficulty accessing high-quality healthcare, trouble getting and keeping health insurance, difficulty finding employment and taking time off work, and issues related to life and disability insurance, access to government benefits, estate planning, family law, and consumer topics.

Know Your Rights

Once you’ve considered the issues, make sure you’re aware of your legal rights related these topics. The Americans with Disabilities Act (ADA) and its recent amendments is a federal law that prohibits discrimination in all phases of the employment process. The law protects an employee or a job applicant during the application process, testing, hiring, medical exams, promotions, layoffs, benefits, compensation, and leave time.

The ADA applies to private employers with 15 or more employees. It also applies to employment agencies, labor organizations, and local, county, and state governments. The ADA provides protection to a “qualified individual with a disability.” This is a two-part equation: an individual must be both qualified for the position and have a disability.

To be a “qualified individual,” the employee must be able to perform the essential functions of the job with or without a reasonable accommodation. If needed, the employee may request a reasonable accommodation from the employer and should then engage in a discussion to determine what might be a reasonable accommodation, even during the application process.

If the employee is qualified, the employer must provide a reasonable accommodation so long as it is not an undue hardship on the employer. If the employee does not need a reasonable accommodation, the employee may choose not to disclose a diagnosis. People are not required to disclose their medical conditions to their employers unless they are asking for a reasonable accommodation or medical leave. If an employer does not know of an employee’s diagnosis, however, the employee is not entitled to protection under the ADA.

Second, to receive ADA protection, an individual must also have a disability. Under the ADA, an individual with a disability has a physical or mental impairment that substantially limits a major life activity. A major life activity can be, among other things, caring for oneself, walking, talking, breathing, thinking, concentrating, working, or operation of major bodily functions.

A cancer diagnosis is not automatically covered as a disability under the ADA. Individuals with cancer may have a qualifying disability if they can show a substantial limitation on a major life activity (even when an impairment is episodic). Individuals may also be protected under one of the other two prongs of the ADA—namely, that they have a history of an impairment or are being regarded as having an impairment.

Employees should also be aware of their rights under the Family and Medical Leave Act (FMLA)—a federal law that requires employers to provide employees with up to 12 weeks of unpaid job- and health insurance–protected medical leave during a 12-month period. The FMLA applies to employers with 50 or more employees, and employees must have worked for the employer for at least 12 months in the past seven years and to have worked 1,250 hours during those 12 months. Leave time under the FMLA can be taken as a 12-week block of time or can be taken in intervals, such as taking every Friday off to visit the doctor or receive treatment.

Individuals with cancer may also be able to maintain their income while taking time off from work through short- or long-term disability insurance policies offered by their employer, through state disability insurance programs, or through one of the two federal long-term disability programs (Social Security Disability Insurance or Supplemental Security Income).

In addition, two federal laws help people with preexisting conditions maintain their health insurance coverage after leaving a job: COBRA and the Health Insurance Portability and Accountability Act (HIPAA). In addition, the new national healthcare reform law also contains protections and possible resources for individuals with preexisting medical conditions.

Finally, state laws may provide additional protections for people with cancer in the employment and health insurance arenas.

Reach Out for Help

If you have questions related to the legal issues attached to your cancer diagnosis, reach out for help. The Cancer Legal Resource Center (CLRC), a joint program of the Disability Rights Legal Center and Loyola Law School Los Angeles, can provide valuable assistance. Established in 1997 in direct response to the legal problems encountered by many cancer patients in the wake of their diagnoses, the CLRC provides free information and resources to cancer patients, survivors, caregivers, healthcare professionals, and others coping with cancer, through educational seminars and conferences, national community outreach, and its telephone assistance line: (866) THE-CLRC [843-2572].