If you have cancer and are working, or looking for work, you will want to know your legal rights. You have two important rights, under federal law. First: you may take up to twelve weeks of unpaid leave to take care of your medical needs. Second: an employer may not treat you differently solely because you have or have had cancer.
Unpaid Leave
The Family and Medical Leave Act requires all employers with 50 or more workers to provide employees up to twelve weeks of unpaid leave to care for their own-- or their dependents’-- serious medical conditions, including cancer. During that period, your employer-provided health coverage remains in effect.
Discrimination
The
Americans with Disabilities Act (ADA) prohibits employers with 15 or more workers from discrimination against workers solely because of a disability. If you are able to perform the essential duties of a job, an employer may not deny you a job or treat you differently if you have a disability, have a history of a disability, or the employer believes you have a disability. In many cases, cancer is considered a disability. The law also requires employers to make reasonable accommodations to help you do your job. Employers may ask medical questions only after offering the job and only if the questions specifically relate to the job. In addition to the federal laws, all states have anti–discrimination laws. Many apply to both public and private employers, as well as employers with fewer than 15 employees. Many state laws protect people with real or assumed disabilities, and therefore cover most cases of cancer based discrimination. A small number of states, including California, expressly prohibit discrimination based on cancer history. Unfortunately, the definition of "handicapped" remains unclear in many states. Therefore the rights of those survivors who are not "handicapped" are in doubt since one must be handicapped in order to bring a claim.
How can survivors avoid discrimination when applying for a job? Cancer survivors can take several steps to avoid employment discrimination: a) Do not volunteer your cancer history; b) Do not lie about your medical history if directly asked; c) Keep the focus of a job interview on your current health, abilities and limitations; d) Seek employment with large companies that can be more flexible in job duties and benefits; and e) Do not ask about health benefits before receiving a job offer.
How can survivors deal with discrimination on the job? Cancer survivors who face discrimination should consider the following options: a) Try to solve the problem informally; b) Suggest accommodations to your employer; c) Seek advice from your doctor and other survivors; d) Keep written records of all job actions; e) Be aware of all filing deadlines under state and federal laws; and f) Carefully consider your goals before seeking a lawyer and beginning a lawsuit.
For more information about the employment rights of cancer survivors, contact: The National Coalition for Cancer Survivorship, 1010 Wayne Ave., 5th floor Silver Spring, MD 20910 (301) 650-8868; www.cansearch.org
This article is adapted in part from Breast Cancer: Employment and Health Insurance Issues, The Female Patient, Vol. 18,pp. 31-38, August 1993, by Barbara Hoffman, J.D., General Counsel, National Coalition for Cancer Survivorship.
Para solicitar información en español, llame al 1-800-ACS-2345. Un especialista en información sobre el cáncer le asistirá en español.
Spring/Summer 1998 Updated 9/18/2004
