NEW YORK—Cancer 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, ‘We’re 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. I’ve 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 I’m going to give you is a lesson on civil rights.”
Reasonable Accommodation
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 don’t take them out when you’re 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. That’s 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 accommodation.’”
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 don’t take COBRA and don’t get insurance for 3 months, then you’re 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.
