When people hear the words “you have cancer,” they quickly become overwhelmed. People think about their health, their family, their mortality. What they don’t think about is the legal labyrinth they may face ahead.
The Cancer Legal Resource Center (CLRC), a joint program of the Disability Rights Legal Center and Loyola Law School, was established in 1997 as a direct response to the frequency of legal problems encountered by many cancer patients in the wake of their diagnosis, and the unavailability of accessible and affordable legal resources that would help them to survive.
There are nearly 10 million cancer survivors in the United States, according to the Centers for Disease Control. Many of them are unaware that they have rights. They also don’t know that resources exist to aid them through the maze of legal and insurance systems. While it should not take legal resources to access health care, understand insurance options or preserve one’s job, it frequently does. When a person can tap into all this information, the quality of outcomes for patient survivorship improves.
People with cancer face employment-related legal issues such as:
• working with their employer on job accommodations while they go through treatment
• receiving negative employment evaluations after disclosing their medical condition
• being terminated from their jobs after disclosing their medical condition
• returning to the work force wondering whether they should disclose their medical condition to a potential employer
Between 1992 and 2007, more than 6,000 people with cancer have registered disability-related complaints with the Equal Employment Opportunity Commission (EEOC) and had their cases resolved. According to the EEOC, 40 percent of people with a cancer diagnosis are working. It is not only important for those employees to understand their employment rights, but it is also important for their employers to understand them.
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination in all phases of employment. An employee with a disability is protected during the application process, testing, hiring, medical exams, promotions, layoffs, compensation, benefits and leave time.
The ADA applies to private employers with 15 or more employees. It also applies to employment agencies, labor organizations and local and county governments. The ADA provides protection to a “qualified individual with a disability,” meaning the individual must be both qualified for the position and have a disability.
“Qualified individual” also means the employee must be able to perform the essential functions of the job with or without a reasonable accommodation. If needed, the employee can request a reasonable accommodation from the employer, and engage in dialogue to determine what that reasonable accommodation might be. If the employee is deemed qualified, the employer must provide the accommodation, as long as it does not cause an undue hardship on the employer. If the employee does not need a reasonable accommodation, then the employee may choose not to disclose his/her diagnosis. People are not required to disclose their medical condition to their employer. However, if an employer does not know of an employee’s diagnosis, then the employee will not be entitled to protection under the ADA.
Secondly, in order to receive ADA protections, an individual must also have a disability. Under the ADA, an individual with a disability is an individual with a physical or mental impairment that substantially limits a major life activity. This might include caring for oneself, walking, talking, seeing, breathing or working. A person may also have a disability if she has a record of impairment or is regarded as having an impairment.
In determining whether an impairment is substantially limiting, it must be looked at in its corrected or mitigated state. Therefore, one must look at the employee’s present condition, where the employee may be in his or her treatment program, medications that control the person’s impairment and any side effects of treatment.
A person with cancer may not be considered to have a disability under the ADA, if they cannot show a substantial impact on a major life activity. However, people may be protected under one of the other two prongs provisions of the ADA, namely that they have a history of an impairment or are being regarded as having an impairment. There are also state laws that may provide additional protections for people with cancer.
Cancer is a life-altering experience. At the CLRC, we can explain the laws in depth, help a person explore options and provide materials, referrals or resources that may be needed.
by Joanna Morales, Esq.
Morales is director of the Cancer Legal Resource Center