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Employment Rights

When you're finally able to concentrate on something besides your cancer treatments, chances are you'll look forward to getting back to a more normal routine. This may mean going back to work. In fact, you may need to work—for psychological if not financial reasons. But you also may have concerns about your employment in view of your condition. Please don't let those concerns discourage you. The law is on your side.

The Americans With Disabilities Act (ADA)

This federal law makes it illegal to discriminate in employment against someone with a disability who is qualified for a position. Is cancer a disability? Not always, according to the Equal Employment Opportunities Commission (EEOC), but at times it can be. To be considered a disability, an employee's physical or mental impairment must significantly limit one or more major life activities.

ADA prohibits employers from discriminating against a disabled person with cancer or with a history of cancer. Under this law, an employer:
  • Cannot require you to take preemployment exams designed to screen out people with disabilities, such as histories of cancer

  • Can ask you medical questions only after you are offered employment and only if the questions relate specifically to the job

Moreover, the ADA requires employers to make reasonable accommodations to qualified individuals with a disability. Some examples of reasonable accommodations include:
  • Modified work schedules

  • Reassignment to a vacant position

  • Job restructuring

  • Making equipment or facilities available to assist a disabled employee do his or her job

A critical component of the ADA's reasonable accommodations requirement is the "interactive process" that employees and employers are expected to engage in, to determine on a case-by-case basis what may be best in a given situation. If you think that, due to your condition, you need an accommodation to do your job, speak to your employer about what may help you and ask your employer for suggestions on how to get the job done.

If you have any concerns about your disability and your employment situation, you should contact your employer's human resources manager or your local EEOC office.

In addition to federal protection, you may be eligible for employment protection under state laws. To learn more about your legal rights, check with:
  • Your local American Cancer Society (ACS) office. ACS has state-specific information pamphlets about cancer and employment discrimination.

  • Your hospital social worker, who may know about laws in your state. He or she also can tell you which state agency is responsible for protecting your rights.

  • The National Coalition for Cancer Survivorship, which can provide you with information and some legal referrals.

  • Your Congressional representative or senator. Their staff members can give you information about federal and state laws. If you aren't sure who represents your district, call your public library or your local chapter of the League of Women Voters.

The Federal Rehabilitation Act (FRA)

The FRA bans public employers and private employers that receive public funds from discriminating on the basis of disability. This law is enforced by the Office of Federal Contract Compliance, Department of Labor.

Family and Medical Leave Act (FMLA)

This federal law generally requires employers with at least 50 employees to provide up to 12 weeks of unpaid leave for eligible employees to care for themselves, a newborn child, or an ill dependent, without loss of job or group health benefits.

You may take FMLA leave when you are unable to perform your work because of a "serious health condition" or your dependent's "serious health condition." Your employer may request certification by a doctor or other healthcare provider. The certification must include:
  • A description of the serious health condition

  • The date that the condition began or treatment became necessary

  • The expected duration of the condition or treatment

If your employer doubts your certification, he or she may require you to get a second opinion from a healthcare provider of his or her choice. If the second opinion differs from the first opinion, then you and your employer may agree on a third healthcare provider to supply a third opinion. You and your employer must accept the third opinion as final. Your employer pays for the second and third opinions.

If you don't provide the medical certification, your absence from work may not be protected by the FMLA. This means that your employer has the legal right to terminate your employment for that absence unless some other law, or your collective bargaining agreement, applies.

If you choose to take a leave under the FMLA, you don't have to take the 12-week leave all at once. It can be taken in blocks, such as several hours a day. And while it does not give you extra paid time, you may be able to use some of the annual paid leave you have already earned to offset the earnings loss during the leave.

Before you return to work, your employer may require you to submit a medical release from a healthcare provider showing your ability to work.

There Are No Guarantees

You know that nothing is guaranteed. But these days, the employment climate for those with serious illnesses, including cancer, is much better than it used to be. And there are laws and organizations to help you make sure your rights are protected. Do not presume an employer will treat you differently because of your cancer. Instead, demonstrate to your employer how you can perform the essential functions of your job and know that the law will support you in your effort to return to work.

Sources of Information

For information regarding employment issues, you may wish to contact these organizations:
  • Americans With Disabilities Act (U.S. Department of Justice)
    http://www.usdoj.gov/crt/ada/adahom1.htm

  • CancerLinks
    http://www.cancerlinks.com
    A search engine, updated daily, listing hundreds of cancer sites on the Worldwide Web.

  • National Coalition for Cancer Survivorship (NCCS)
    1010 Wayne Avenue, Suite 770
    Silver Spring, MD 20910
    1-301-650-9127
    http://www.canceradvocacy.org
    One of the nation's largest networks of organizations and individuals serving people with all types of cancer.

  • National Partnership for Women & Families
    1875 Connecticut Avenue, NW, Suite 650
    Washington, DC 20009
    1-202-986-2600
    http://www.nationalpartnership.org
    A nonprofit organization that promotes fairness in the workplace, quality healthcare, and policies that help people meet the dual demands of work and family.

  • Patient Advocate Foundation (PAF)
    700 Thimble Shoals Blvd., Suite 200
    Newport News, VA 23606
    1-800-532-5274
    http://www.patientadvocate.org
    PAF provides education and legal counseling for cancer patients concerning insurance and financial issues.

  • American Bar Association (ABA)
    American Bar Association
    750 N. Lake Shore Drive
    Chicago, IL 60611
    1-312-988-5000
    http://www.abanet.org
    Offers consumers information on various legal topics.

Additional Resources

You may find the employment information in the following publications helpful:

The Activist Cancer Patient: How to Take Charge of Your Treatment
Beverly Zakarian
John Wiley & Sons
ISBN: 047-112026X, 240 pages
May 1996

What Cancer Survivors Need to Know About Health Insurance and Working It Out—Your Employment Rights as a Cancer Survivor
National Coalition for Cancer Survivorship (NCCS)
1-301-650-9127
1-877-NCCS-YES (622-7937) [General information and publication orders]
http://www.canceradvocacy.org

Cancer—Your Job, Insurance and the Law
American Cancer Society
1-800-ACS-2345
Available free of charge.


What the Health Insurance Reform Law Means for Women & Families and Guide to the Family & Medical Leave Act
National Partnership for Women & Families
1-202-986-2600
http://www.nationalpartnership.org
Both available free of charge.