While the end of October does invite a celebration of all things spooky, it also draws to a close a month of awareness for those who are living with, who have passed from, and who survived breast cancer. About 12% of U.S. women will develop invasive breast cancer in their lifetime, as well as 1 in 883 men.
Living with breast cancer presents unique challenges and difficulties. From doctors’ appointments to chemotherapy to surgery, breast cancer patients must navigate varying obstacles on their road to recovery. Unfortunately, sometimes additional hurdles may be present in the workplace. Taking time off for health-related reasons can sometimes feel like a minefield. The good news is that the Americans with Disabilities Act “ADA” and the Family Medical Leave Act “FMLA” both provide protection to individuals living with breast cancer and can help them to determine whether to tell, who to tell, and what to tell.
Should I tell my employer about my breast cancer?
Though the ADA and FMLA offer job protection to those individuals who inform their employers of their diagnosis, there is no law that mandates that any person disclose whether they have breast cancer. At its core, this is a very personal question that any individual should discuss with their doctor, their family, and any other people they trust.
If an individual discloses their breast cancer diagnosis to their employer, the ADA protects them from adverse actions based on their diagnosis. Due to the broad definition of “disability” under the act, breast cancer qualifies when it “substantially limits” at least one “major life activity.” Therefore, if an employer knows of an employee’s breast cancer, it cannot terminate, discipline, or deny specific benefits to the employee, amongst a host of other negative actions, based on the breast cancer alone. In fact, the ADA requires the employer to make reasonable accommodations, which will vary based on the severity of the breast cancer and the capabilities of the company. These accommodations can take diverse shapes and sizes and can be suggested by the employee and the employer alike.
The ADA also provides protections to employees whose employer regards them as disabled or incapable of performing their work. For example, as Legare, Attwood & Wolfe’s Cheryl Legare recently argued in Lew
is v. City of Union City, if an employee is placed on administrative leave and forbidden from returning to work until they are released by a doctor, they may have been regarded as disabled.
An employee has the option to take FMLA, which is medical leave provided by an Act of Congress. FMLA can be somewhat trickier than the ADA in that it only applies to specific employees, which you can read more about here. Essentially, an employee must have worked for their most recent employer for one year and the employer must have at least 50 employees under their control. The employee must also provide as much notice as practical based on their need. This notice often will serve to disclose the employee’s diagnosis. A qualifying employee is entitled to 12 workweeks per year and can take them continuously or intermittently based on need. Once the employee exercises their rights under the FMLA, they are protected from discrimination and must be restored to their original position or an equivalent position.
Who should I tell?
If an employee does decide to disclose their breast cancer, their first step should be to look at their employee handbook or manual. Many companies have policies related to the ADA and the FMLA and their handbooks can often provide insight on who to speak with and whether there are forms to fill out. If the handbook is unavailable or unclear, a great place to start is Human Resources.
Once an employee decides to take affirmative steps to disclose their breast cancer and obtain medical leave or accommodations of some sort, the employee should do their best to leave a record of their requests and disclosures. This record can be helpful if something goes wrong along the way.
What should I say?
Depending on what relief the employee is looking for, they may not have much discretion on what they can disclose. For example, the United States Department of Labor provides a specific form that must be filled out by employees seeking FMLA leave. However, if an employee is looking for accommodations, there is no magic requisite language. Instead, the employee’s best bet is to be up front and ask the employer for what they need.
At the end of the day, there is no “right” way to tell an employer about breast cancer. No matter the relationship, the discussion can be difficult and uncomfortable. If an employee is going to disclose their diagnosis, the best thing they can do is be honest.
If you have questions or are concerned that you may be facing discrimination due to breast cancer at your workplace, give the attorneys at Legare, Attwood & Wolfe a call 470.823.4000.