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#How Employment Discrimination Laws Protect Cancer Survivors

Learn more about your legal rights relating to employment:

In most cases, no.  Under federal law 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.

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.

What if I need extra time or help to do my 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 an “undue hardship” on the business or other workers. “Undue hardship” refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business. For example, if you have to miss a substantial amount of work time and your work cannot be performed by a temporary employee, your employer may be able to replace you. In most circumstances, an employer does not have to provide an accommodation that would violate an established seniority system.

The key to obtaining a reasonable accommodation is to ask your employer for a specific accommodation. Employers provide most survivors the accommodations they request. (Breakaway from Cancer, 2006). Time-related accommodations, such as flextime and time off for doctors appointments, are the most desired accommodations. Working from home may also be a reasonable accommodation under certain circumstances.

Regardless of whether I consider myself disabled, if I am treated differently because of my cancer history, do federal and state laws cover me?

In most cases, yes.  Federal law (the ADA) and most state employment discrimination laws protect cancer survivors who:

• have a disability; or
• have a history of a disability; or
• are regarded by others as having an impairment.

A disability is an impairment that substantially limits your ability to do major life activities, such as walking, breathing, and concentrating.

The ADA also defines major life activities to include “functions of the immune system” and “normal cell growth.” Therefore, if your cancer substantially limits your immune system or normal cell growth, you have a disability as defined by the ADA. Moreover, if your cancer is in remission, you have a disability if your cancer would substantially limit a major life activity when active.

Although most state laws cover cancer survivors from the time of diagnosis, some state laws do not cover survivors who are cancer free because they protect only people with serious physical disabilities. Contact your state “civil rights,” “human rights” or “human relations council” to learn more about your state law. (See p. 17 for more information about how to locate your state agency.)

Different state and federal laws define “disability” in a variety of ways. For example, you may have a “disability” under the ADA, yet not have a “disability” as defined by the Social Security Act. The application for or receipt of Social Security Disability Income benefits does not automatically bar an employee from making a claim under the ADA.

The determination of whether a person has a disability must be made without regard to the effects of medication or prosthetic devices. Therefore, if you take medication that helps you do everyday activities, but who would be substantially limited without the medication, you are a person with a disability under the ADA.

Similarly, if you lost a limb to cancer and have full mobility only with the use of a prosthesis, you are a person with a disability under the ADA.

May an employer establish specific attendance and leave policies?

Yes.  The Americans with Disabilities Act allows employers to establish attendance and leave policies that are uniformly applied to all employees, regardless of disability. Employers must grant leave to cancer survivors if other employees would be granted similar leave.

Employers may be required to change leave policies as a reasonable accommodation. Employers are not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.