NEW YORKCancer patients have employment rights under the
Americans With Disabilities Act (ADA) and other legislation, and
they will need them, L. Susan Scelzo Slavin, Esq, a nationally
known advocate and litigator on behalf of the catastrophically ill,
said at a workshop sponsored by Cancer Care, Inc.
There is discrimination in the workplace because of the myths
that cancer is a death sentence, that it is contagious, and that
cancer patients are an unproductive drain. The first thing your
employer will say when you tell them you have cancer is,
Were with you all the way. Is there anything we can do
for you? However, when the hair comes off and the wig goes on,
you start to see changes. Ive had clients who have come back
after an illness to find their desk moved, their phone extension
changed, or their job changed or eliminated. So what Im going
to give you is a lesson on civil rights.
The first lesson: Under the ADA, as long as a disabled individual can
still perform the essential functions of the job, that individual is
entitled to a reasonable accommodation from their employer so that
they can continue to work. Such accommodations might include time off
or a more flexible schedule so they can get treatment.
The catch is that what might be reasonable for a large corporation
might not be for a small business. Ms. Slavin cited examples: A
political science instructor at a large university asks for 3 weeks
leave for treatment. Since there are many other instructors who could
take over for that period of time, the college would be expected to
make such an accommodation. But in the case of a person who plays a
pivotal role in a small business, that business could justifiably
argue that a long-term absence would be a hardship.
In asking for a reasonable accommodation, Ms. Slavin pointed out that
employees should not threaten legal action. It is important to
have a dialogue with the employer and not to be adversarial in
requesting an accommodation, she said.
At the same time, it is important to keep notes in case the situation
does head in a litigious direction. The notes have very good
evidentiary value, and it is also very empowering, but dont
take them out when youre talking to your employer, she said.
Someone who works for a large corporation should speak with personnel
at the human resources department and notify them that a request is
being made for a reasonable accommodation, Ms. Slavin said. The
meeting should be followed up with a letter confirming the request.
This letter should be sent by certified mail with receipt requested
(but without a cc to a lawyer on the bottom of the
letter, which would suggest an adversarial relationship).
It is best to maintain a good employment relationship if
possible because lawyers are the last thing you need in your life
right now, Ms. Slavin said, adding that litigation is
hard, long, stressful, and expensive.
The ADA protects employees who work in companies with 15 or more
employees, and only protects regular employees, not independent
contractors. Some states may offer somewhat different protections. In
New York State, with legislation that mirrors the ADA, employees are
covered if they worked at a business with four or more employees.
Family Medical Leave Act
The Family Medical Leave Act (FMLA) allows employees to take up to 12
weeks of unpaid leave to care for themselves or for certain
relatives. The law only applies to firms with 50 or more employees.
The person who wishes to take unpaid leave must have worked a minimum
of 1,250 hours the previous year. The leave is provided so that the
employee can care for himself or herself, or a spouse, child or
parent, but no one else.
Ms. Slavin noted that recently some companies have begun to insist
that an employee use any accrued vacation or sick time as part of the
12 weeks of unpaid leave. The company can also make the employee take
FMLA leave once the employee asks for a reasonable accommodation.
When Seeking Employment
Job seekers who have cancer are not required to tell prospective
employers about their illness, nor are the people who interview them
allowed to ask any questions that would elicit medical information.
However, after offering the job, the employer is allowed to ask
questions that elicit medical information as long as the questions
are related to the job and all employees are asked the same
questions, Ms. Slavin said.
If the company then lets the person go because of what they find out,
that person has a wonderful discrimination suit. Thats a
case I would take in a heart beat, she said.
To cancer patients who ask whether they should let a prospective
employer know that they have cancer, Ms. Slavin said to wait until
they have actually started the job. Then, 2 weeks later, go to
them and say, I have a cancer. I need treatment. I can perform
the essential function of my job, but I need a reasonable
Never let health insurance lapse more than 60 days between jobs, she
warned. Under federal law, the new insurer at the next job cannot
deny coverage due to a preexisting condition as long as there is no
gap in coverage from the old job. If you quit your job, and
dont take COBRA and dont get insurance for 3 months, then
youre out of luck, she said.
Nor should people quit right after they have finished taking FMLA
leave because then the employer can charge the employee for
retroactive medical benefits. Wait a month and then quit,
Ms. Slavin advised.