Many of those diagnosed work in office settings, and will manage to either continue working through treatment or plan to return to their position after their recovery. Although both federal and state laws protect cancer patients and survivors from discrimination in the workplace, qualified employees still worry about suffering from job losses and demotions after their diagnosis. Often, employees with cancer even face discrimination because of their supervisors’ and co-workers’ misperceptions about their ability to work during and after cancer treatment.
No one, ever, should have to worry about risking their livelihood in order to seek the cancer care that they need. Fortunately, there are important protections against cancer-based discrimination that employment laws provide. For instance, cancer can cause a disability that substantially limits one or more of your major life activities, which includes everyday tasks like working, caring for yourself, or even walking or eating. The Americans with Disabilities Act, or the ADA, is designed to make it possible for employees who are qualified for the essential functions of their job to continue working through cancer treatment and recovery. On January 1st, 2009, the ADA Amendments Act of 2008 (ADAAA) came into effect, expanding the definition of the term “disability” as it was interpreted by the ADA to include functions of the immune system, cell growth, digestive, brain, and nervous systems, as well as the respiratory and reproductive systems. These additions could help employees with a cancer diagnosis to qualify for protection under the ADA. A person may also be considered to qualify under the ADA for having a history of a disability–this could refer to an employee with cancer that is now in remission, but substantially limited a major life activity in the past.
In general, employers to whom the ADA applies are required to provide reasonable accommodations to those employees that qualify for a disability such as cancer. Reasonable accommodations typically translate into adjustments or changes to a work environment or job that are made by an employer in order to enable an employee with a disability to perform their essential job functions. For instance, an employer could modify an employee’s work schedule or shift change to accommodate appointments for cancer treatment, build in breaks or a private area to allow an employee to rest and take cancer medication, or give permission for an employee to make treatment-related phone calls to doctors on their office phone where the employer’s usual practice is to not allow personal calls at the office. It’s important to remember that employers are not required to provide reasonable accommodations under any and every circumstance, because there is an exception referred to as “undue hardship”–that is, an employer must provide reasonable accommodations unless doing so would cause significant difficulty or expense for the employer.
According to the Equal Employment Opportunity Commission, or EEOC, which enforces the ADA’s protections for employees, disability discrimination takes place when an employer covered by the Act treats a qualifying employee unfavorably because of their disability. That means discriminatory action could include an employer taking action against a qualifying employee because they asked for their rights under the ADA, such as refusing to provide a reasonable accommodation because it would cost money. Discrimination against an employee for their disability is forbidden in any aspect of employment, including hiring, firing, pay, and promotions.
If an employee’s cancer treatment, or the treatment of their parent, spouse, or child, calls for them to take time off of work, the Family and Medical Leave Act (FMLA) can make that possible while providing some job security as well. Under the FMLA, employees who work for employers covered by this federal program could qualify to be given unpaid, job-protected leave in order to balance work and health-related responsibilities by taking off up to 12 weeks of medical leave per year. This 12-week leave period could be taken all at once, or intermittently (for example, an employee taking their leave every Monday of the week to dedicate that time to cancer treatment). The FMLA also protects qualified employees who return from their medical leave of absence by requiring that they are restored to original or equivalent terms of employment, including pay and benefits.
Keep in mind that it is unlawful for an employer to retaliate or discriminate against an employee in response to their rightful exercise to take medical leave allowed by the FMLA. Retaliatory or discriminatory action as barred by EEO laws could mean interfering with, restricting, or denying an employee’s FMLA leave taken in good faith. In addition, firing or harassing an employee after they have just returned from FMLA leave could also qualify for retaliation, depending on state law and the individual case.
If you suspect that you are being treated less favorably at work because of your medical history with breast cancer (or any form of cancer) it’s important that you speak with an employee rights attorney as soon as possible to see what legal protections could apply to you, as the amount of time to file a complaint may be limited.