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Cancer and Work: Protections Under the Americans with Disabilities Act

Cancer and Work: Protections Under the Americans with Disabilities Act

ABSTRACT: Abstract Before the passage of laws that protected persons with disabilities from employment discrimination, cancer survivors faced blatant employment discrimination with little legal recourse. From the early 1990s to 2008, cancer-based discrimination significantly diminished as survivors benefited from expansion of their legal rights, advances in medical care, and improvements in public perceptions about living with and beyond a cancer diagnosis. Survivors who sued their employers for discrimination in federal court, however, were seldom awarded a satisfactory remedy. In 2008, Congress revised the Americans with Disabilities Act to make it less burdensome for individuals who have disabilities to seek remedies for employment discrimination. This article will review the work experiences of cancer survivors, describe their rights under the original Americans with Disabilities Act of 1990, and project how the Americans with Disabilities Act Amendments Act of 2008 may improve cancer survivors' employment opportunities.

With about 12 million cancer survivors living in the US,[1] cancer affects millions of working Americans. Improvements in early detection and treatment have resulted in a significant number of newly diagnosed and long-term survivors of working age. Approximately 4,180,000 people—38% of all cancer survivors—are 20 to 64 years old.[2] The majority of these individuals want to and are able to return to work after diagnosis and perform their jobs.

Cancer treatment limits the ability of only a minority of survivors to work as they had prior to diagnosis. Surveys in the 1980s reported that approximately 80% of survivors return to work after diagnosis.[3] A survey of 10 studies that assessed return-to-work rates of a total of 1,904 cancer survivors from 1986 to 1999 found that a mean of 62% returned to work.[4] A study of 1,763 survivors who were first diagnosed between January 1997 and December 1999 found that of the 1,433 who were working at diagnosis, 73% returned to work within 1 year of diagnosis and 84% returned to work within 4 years.[5] Bradley et al. interviewed 253 long-term survivors in 1999 and found that 67% were employed 5 to 7 years later.[6]

Nonetheless, cancer can have a significant negative impact on survivors' employment opportunities. Although the majority of cancer survivors are able to continue working or return to work without limitations resulting from their diagnosis or treatment, some survivors experience significant physical or mental limitations that affect their ability to work.[5–8] An analysis of the 2000 National Health Interview Survey found that cancer survivors have poorer outcomes across all employment-related burden measures relative to matched control subjects.[9] One estimate is that 16.8% of working-age survivors (compared with 5% of matched controls) are unable to work because of a physical, mental, or emotional problem; of those who could work, 7.4% (compared with 3.2% of matched controls) were limited in the kind or amount of work they could do.[6] An analysis of 36 studies of 177,969 participants found that survivors were more likely than healthy control participants to be unemployed. (33.8% vs 15.2%).[10]

Whether a survivor continues to work during treatment or returns to work after treatment—and if so, whether that survivor's diagnosis or treatment will result in working limitations—depends on many factors. They include the survivor's age, stage at diagnosis, financial status, education, and access to health insurance and transportation, as well as the physical demands of the job and the presence of any other chronic health conditions.[5,6,11] For example, survivors in physically demanding jobs have higher disability rates than those in more sedentary jobs; survivors with advanced education have higher return to work rates than those with less education.[5,11] Medical treatment decisions that consider quality of life and the shift towards providing cancer treatment in outpatient settings have contributed to the increasing number of survivors who can work during their treatment.[12]

Prior to the passage of laws that prohibited disability-based discrimination, a significant percentage of cancer survivors (25% to 84%) experienced cancer-related employment discrimination.[13–15] In the late 1980s and early 1990s, new federal and state laws prohibited employment discrimination based on disabilities such as cancer. Since then, survivors have reported decreasing incidences of work problems attributable to their cancer.

A 2006 national survey of cancer survivors found that most employers appear to be highly sensitive and accommodating to the needs of employees who have cancer and to employees who are caregivers for cancer survivors.[16] Three out of five survivors reported receiving co-worker support, such as help with work or random acts of kindness.[16] Survivors and caregivers reported very low incidences of negative reactions from their employers and co-workers.[16] The most common negative reaction, reported by one in five survivors, was that an employer gave a survivor less work after diagnosis.[16] Other consequences, such as being fired or laid off (6%), denied a raise or promotion (7%), and denied health insurance benefits (4%), were far less common.[16]

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