Helping Patients Access Protections of the ADA

April 12, 2010

When she learned that she had breast cancer, Patricia Garrett did what many people with cancer do: she continued working.

When she learned that she had breast cancer, Patricia Garrett did what many people with cancer do: she continued working. Just a few weeks after her initial surgeries, she returned full-time to her position as the Director of Nursing at a University of Alabama hospital. At various points during her radiation treatment and chemotherapy, she took leave from her job. She always returned to work within a short period of time post-treatment, until one day her supervisor told her she was being demoted. Ms. Garrett brought a discrimination lawsuit because she felt that she was unfairly demoted due to her cancer. The federal court that heard her case, and the federal court of appeals that reviewed the lower court's decision, ruled against her. Following Supreme Court precedent that limited who was protected by the Americans with Disabilities Act, the courts held that regardless of whether Ms. Garrett was treated unfairly, her cancer did not sufficiently limit her abilities, and so she did not have a disability-making it perfectly legal for her employer to demote her for having cancer.[1]

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which became effective on January 1, 2009, amends the Americans with Disabilities Act (ADA) to restore the original intent of Congress to protect people with chronic conditions such as cancer, diabetes, epilepsy, and mental illness from discrimination at work, school, public places, and elsewhere.[2] The ADAAA provides hope that in the future, cases like Patricia Garrett's will be decided differently. This hope can only be realized with the help of healthcare professionals.

The article in this issue of ONCOLOGY Nurse Edition by Barbara Hoffman, JD, provides an excellent, comprehensive analysis of the new law. Here we expand on this analysis by offering additional advice to healthcare professionals regarding how to help a cancer survivor establish that he or she is entitled to the ADA's protections. These protections include establishing qualification for an employment opportunity and requiring changes in the workplace (“reasonable accommodations”) that allow survivors to continue working while protecting their health.

HELPING YOUR PATIENT ESTABLISH “DISABILITY” UNDER THE ADA

As noted by Ms. Hoffman, a cancer diagnosis has a negative impact on many surviviors' employment opportunities. Cancer survivors may seek the help of their healthcare providers when facing discrimination at work related to their cancer. Many of them may have no idea that such discrimination is illegal until a knowledgeable healthcare professional points this out.

Once a survivor is aware of the protections of the ADA, he or she will still need the assistance of a healthcare professional to document the diagnosis and to establish that cancer is a disability. To establish employment protections under the amended ADA, a cancer survivor must still prove that he or she meets the law's definition of “a person with a disability.”[3] While the ADAAA made it much easier for healthcare professionals to document that a patient with cancer has a disability, as Hoffman explains, it did not remove the requirement of a basic showing that cancer substantially limits a “major life activity.”[3]

The article by Hoffman does not directly address a great challenge that the ADA once posed to healthcare professionals. Before the ADA Amendments Act of 2008, medical experts who testified regarding whether a person's cancer qualified as a disability under the law were often placed in the difficult position of establishing two possibly conflicting facts: first, that a cancer survivor was sick enough to meet a very demanding standard of disability, and second, that the person was not too sick to do his or her job. Because of Supreme Court rulings narrowing the definition of a disability, that is, a substantial limitation in a major life activity, medical experts had to focus on the ways that cancer substantially limited a person's ability to undertake basic activities such as walking.

Some medical experts fell into the trap this created. They successfully convinced an employer or a court that the cancer survivor did indeed meet the legal definition of disability, but as a result armed the employer to claim that the survivor was too sick to do the job. On the other hand, some medical testimony established that having cancer did not prevent the survivor from doing the job, but armed the employer to claim that the survivor was too healthy to be protected by the ADA, as in Patricia Garrett's case.

As a result of the ADAAA, the healthcare professional's role is now straightforward. As Hoffman notes, a nonexhaustive list of major life activities, including the major bodily function of normal cell growth, has been added to the ADA.[3] A healthcare professional can now focus on the diagnosis and its biological meaning for the person affected, rather than listing how a person may be limited in specific activities of daily living that even very ill people can often perform, such as walking and hearing. The healthcare professional can do this by providing a letter to an employer or testifying in court that a patient is substantially limited in the major life activity of normal cell growth. For example, a treating physician can explain that a patient has been diagnosed with breast cancer caused by abnormal cell growth in breast tissue.

Whereas in the pre-ADAAA days, a physician might have to provide many personal details about the treatment impact on the life of the cancer survivor, now he or she can focus on the clinical or biological meaning of the diagnosis of cancer rather than on how ill the person may feel as a result of his or her cancer and its treatment. As a result, the healthcare professional avoids raising unfounded fears that the survivor will become too sick to work or will be a danger in the workplace, because an employer may legally terminate a worker with cancer based on a reasonable belief that the cancer prevents the worker from doing the job, or makes the worker unsafe.

Additionally, the ADAAA makes it easier for healthcare professionals to show that a person whose cancer is in remission is nevertheless a person with a disability, and therefore entitled to protection under the ADA. The law provides two main avenues to do this, both of which require the healthcare professional to describe what would happen if the survivor were in certain situations. First, the healthcare professional can document whether the person would be substantially limited without the benefit of treatment, medical devices, or adaptive behaviors (“mitigating measures”).[3]

For example, many patients would not have gone into remission without treatment and lifestyle changes. Therefore, the healthcare professional can write a letter to an employer explaining that the survivor, when viewed without the mitigating measure of treatment and changed behaviors, would experience significant progression of disease. Second, the healthcare professional can describe how the person would be substantially limited in major life activities during periods of disease progression or recurrence, or during active cancer treatment, even if these limitations only occur intermittently or for short periods of time (conditions that are “episodic or in remission” should be evaluated in their “active state”).[3] For example, survivors who experience episodes when they are too ill to care for themselves, walk, eat, or work as a result of either the cancer or its treatment are substantially limited in those life activities. In such cases, the healthcare professional can explain to employers that the survivor was substantially limited in major life activities because of his or her cancer treatment or its sequelae.

HELPING YOUR PATIENT USE HIS OR HER RIGHTS UNDER THE ADA

While the ADAAA does not change the rights that a person has under the ADA, it makes establishing an entitlement to those rights easier. But what rights does the ADA offer a cancer survivor? Workers are protected from discriminatory employment actions based solely on cancer, such as refusal to hire, termination, or, as in Patricia Garrett's case, demotion. Other patients may need assistance from their doctors and nurses in order to access two other rights afforded under the ADA: individualized assessments and reasonable accommodations.

Individualized Assessments

The ADA forbids employers from making employment decisions based on fears and stereotypes about people with disabilities, and so requires employers to individually assess the abilities of the cancer survivor in question to determine whether he or she is able to do the job (ie, is “qualified”) and whether he or she would pose a danger in the workplace (is a “direct threat to self or others”).[3] Healthcare professionals can help employers properly assess a cancer survivor's abilities. For example, an employer might express concerns that a worker will not be able to keep up with her workload due to cancer. A treating healthcare professional can prevent an employer from legally acting upon those concerns by documenting to the employer that, in his or her medical opinion, the patient's diagnosis and/or treatment will not prevent her from continuing to fulfill her job duties.

Reasonable Accommodations

Some survivors may seek the advice of their healthcare providers about confronting new difficulties at their workplace related to cancer or complications arising from treatment. Healthcare professionals, usually doctors and nurses, can assist survivors by documenting the need for reasonable accommodations, which are changes in the workplace to enable a person with a disability to continue performing his or her job duties. As long as the survivor can perform the main duties (“essential functions”) of the job with changes that do not present a substantial amount of expense or difficulty for the employer (“undue burden”), the employer is required to provide the accommodations.[4]

A healthcare professional can facilitate the reasonable accommodation process by providing a letter documenting the diagnosis and why cancer is a disability, as explained above, and describing the necessary accommodation(s). For example, a healthcare professional can explain that a factory worker undergoing chemotherapy may experience nausea after chemotherapy and needs to be able to go to the bathroom as needed.

Another common problem that survivors may experience is cognitive impairments caused by toxic chemotherapies. These cognitive impairments can make it difficult for the worker to remember assignments and other important work duties. One potential accommodation a healthcare professional can document is that a survivor is requesting that assignments and other detailed information be given in writing, rather than verbally, due to difficulties with memory resulting from cancer treatment.

CONCLUSION

Now, healthcare professionals can use the ADAAA's major life activity of normal cell growth to document to an employer that a person with cancer is protected from discrimination. As a result, a worker can assert the right to be judged based on ability, not cancer, and the right to modifications at work to enable continued employment. Cancer survivors face many challenges. With the help of healthcare professionals, establishing the right to work free from discrimination should not be one of them.

References:

References

1. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306 (11th Cir. 2007).

2. Thomas V, Gostin L: The Americans with Disabilities Act: Shattered aspirations and new hope. JAMA 301:95–97, 2009.

3. The Americans with Disabilities Act. 42 USC § 12101, et seq. (2009).

4. Job Accommodation Network. Available at http://www.jan.wvu.edu/. Accessed on March 22, 2010.