Working Through Cancer
Ask anyone who received a cancer diagnosis, and they can likely tell you when and where they were when they heard the news. For most of us, we look normal, but inside, things are happening – both in our bodies and in our heads. How a person processes a cancer diagnosis is as individual as his or her treatment plans. For many though, it means keeping the status quo, going on about life – squeezing treatment in between everything else that is going on – as if nothing significant is happening.
For many folks, taking an extended break from work is not a desirable action. Sometimes it simply is not financially feasible to take leave. Keeping work as a constant can serve to normalize life during treatment. Because managing cancer therapies is challenging – particularly in a COVID world where having compromised immunity is even more risky – it is important to understand what laws and protections are available to American workers.
First off, it is important to note that there is no legal mandate that requires an employee to disclose a cancer diagnosis to his or her employer. Whether an individual chooses to do so, is up to the individual. Doctors, therapists, and trustworthy family members or friends can help with decisions like this, but ultimately it is a very personal decision. It is important to consider, however, that disclosure to an employer may be required if you seek certain legal protections.
The Americans with Disabilities Act, As Amended (“ADA”) was established to protect employees from adverse actions like retaliation, including termination, based on the diagnosis of a disability. Under the ADA, diagnoses like breast cancer or rheumatoid arthritis qualify when it “substantially limits” at least one “major life activity.” What this means is, if an employee works for a company that employs 15 or more employees and the employee chooses to tell his or her employer about the diagnosis, the employer cannot discipline or take negative actions against the employee, such as termination or denying benefits, based on the diagnosis alone. The ADA requires employers to engage in an interactive process with employees to determine whether reasonable accommodations are needed. Determining what is a reasonable accommodation, like determining a cancer treatment plan, is very individualized – for the company and for the employee. There is no one size fits all. The severity of the cancer, the impact of the treatment and the capabilities of the company all come into play in determining what is considered reasonable. Oftentimes, physicians and therapists are a good starting point when trying to figure out what may be helpful. They have the experience of exposure to many people who have worked through treatment and have the wealth of knowledge of what has been helpful to most cancer survivors.
For many, employment protections don’t end with the ADA. In 1993, the Family and Medical Leave Act was passed, providing certain employees with up to 12 weeks of unpaid, job-protected leave per year. If the employer offers (or is required to offer) FMLA, cancer patients and their caregivers are entitled to continuous or intermittent leave when the employee is unable to work because of a serious health condition, or in the case of a caregiver, to care for an immediate family member (like a spouse, child or parent) with a serious health condition. All public agencies, all public and private elementary and secondary schools, and all companies with 50 or more employees within a 75-mile radius are required to offer FMLA. To be eligible for FMLA, the employee must have worked for the employer for 12 months (and worked a minimum of 1,250 hours within the past 12 months). If you seek to use FMLA leave to protect your job, your employer may require that your physician complete a Certification of Health Care Provider for Employee’s Serious Health Condition under the Family and Medical Leave Act.
If an employee does decide to disclose a cancer diagnosis, the first step should be to consult any company policies, handbooks, or manuals to see what process is established and what measures the company needs the employee to take to begin this process. Many companies have well defined policies related to the ADA and the FMLA, and the handbooks often guide employees through the forms and tell them who to talk to about the diagnosis and plans. If a company’s handbook is unavailable or unclear, Human Resources is often a good starting point.
Once an employee decides to take affirmative steps to disclose his or her diagnosis or to obtain medical leave or accommodations of some sort, the employee should do his or her best to leave a record of any requests and disclosures. In other words, documenting in writing what has been done, when it was done and keeping a copy of all requests and notes from conversations can be very helpful if something goes wrong along the way.
Ultimately, there are many ways to handle working through a cancer diagnosis. Each person must decide what is best. If continuing to work through treatment is the way to go, knowing what protections are available and knowing how to utilize the protections will go a long way in helping your employment during treatment be successful. If you have questions or are concerned that you may be facing discrimination or retaliation due to a cancer or other medical diagnosis or a caregiving situation, the attorneys at Legare, Attwood & Wolfe will see if they can help you. Call or email us today at 470.823.4000 or email@example.com.
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