Published on October 8, 2020
Do I Have a Legal Obligation to Disclose My Cancer Diagnosis in the Workplace?
Am I legally obligated to tell my employer about my cancer diagnosis? In what circumstances is it necessary? Will my professional relationships be affected?
Employment attorney Jill Silverstein answers all of these questions and more in this segment of cancer in the workplace. She is joined by Dr. Mark Lewis, a practicing oncologist who has experienced this topic first-hand as a cancer patient, and Esther Schorr, patient advocate and co-founder of Patient Power.
Together they will navigate topics including if and when you are required to disclose, how family medical leave (FMLA) affects this, and perspectives on the intersection of employers and social media.
This is Part 2 of a 3-part series. Watch all segments in the series below:
- Part 1: Diagnosing My Own Cancer: Oncologist Shares His Cancer Story
- Part 3: Cancer in the Workplace: What Are Reasonable Accommodations?
The comments of Jill Silverstein, SilversteinWolf, LLC, may not apply to your individual circumstance. Every situation is different and depends on your specific facts and laws of the state in which you reside.
Transcript | Cancer in the Workplace: Do I Need To Tell My Boss?
Am I Required to Tell My Employer About My Diagnosis?
Jill, as an employment attorney, you have a lot of experience dealing with this whole disclosure issue. So, let's assume I'm a patient and I just got diagnosed with cancer. Am I legally obligated to tell my employer about my cancer diagnosis?
No. You're not. Your patient history, your medical history, that's private. That's your personal history. In fact, almost all states have laws that protect a physician-patient privilege. Just like you wouldn't come in and tell your boss, "Oh, I'm taking these medications this morning and I'll take them later on." It's none of their business.
You can tell them if you want. You're not legally obligated at all. Unless you want to take FMLA. Which is family medical leave. Which gives you extraordinary extended leave and protects your job while you're out on a serious illness.
What Legal Protections and Benefits Do I Have?
So, you're saying I legally don't have to tell anything. But if I choose to tell, let's talk about what are the protections I have if I disclose this and what are some of the benefits you started to talk about.
Well, if you decide to tell your employer that you have an illness, that is fair because that adjusts the expe... Just as a normal employment relationship, you're letting your employer know, "I'm going to be sick. I'm going to be out for a few days. You may want to have someone cover for me. I'm going to use my sick leave."
I think for most employers, they appreciate that. And they can accommodate you, allow for your being out to have someone cover your work. Ideally, your employer respects your privacy, and you can confide in the employer. It's all towards a positive work environment. Sometimes it's not always received well.
We protect your privacy. That is sacrosanct to us. A lot of people have heard about attorney-client privilege. Then there's also patient-physician confidentiality. There may be no quicker way honestly to get fired as a doctor than voluntarily disclosing someone's private health information. That is literally a fire-able offense. The patient really is in control of what they disclose to their employer. As the physician, we will never, ever within our oath disclose something without the patient giving us permission to do so.
After a patient discloses their cancer diagnosis, are companies required to notify the employee of additional benefits that they might have access to?
That's the thing that as an employee, what you would do is, if there's an HR department or personnel department, you should go and talk to somebody there. Whether it's insurance. Whether there's short term disability, long-term disability that's available. If there are things that you can sign up for. It depends upon the state. It depends upon if you have an employee handbook. It depends upon the employer's policies. Some states, those things are like contracts with the employee. In some states, they're just guidelines.
What is the Family Medical Leave Act (FMLA)?
So, FMLA stands for Family Medical Leave Act. Was an act of the 1990s. Designed to provide protections to employees who had to take leave from work extraordinarily beyond the allotted one or two weeks sick leave they had to care for themselves for serious illness, to care for a loved one, a family member.
What that does is it allows you to leave work. Take leave from work to take care of yourself and it secures your job. When you come back from your FMLA leave, your job will be there. That is the one circumstance where you do have to disclose your illness. An employee who applies for FMLA, there are forms issued by the federal government that they have to follow. One of those forms is an authorization for release of information that a patient has to sign. It will go to their doctor, then they can release information to your employer.
Don't just give your employer information about your health information or tell your doctor to do that. Because they won't. They will not do it unless you sign something. So, the FMLA helps if you have to take leave longer than a week. There's another leave called intermittent FMLA.
Instead of taking a block of two weeks or three weeks, you can say, "I intermittently need to take this leave." It is sort of like a cone of protection for the patient. That will allow somebody if they have to go in, they have to go through their range of chemotherapy. They will have a week to recover. They can come back to their job. Those are things that protect the patient. Again, it sounds Mark has been through that as well.
Is There a Difference between Continuous and Intermittent FMLA Leave?
Jill just said something very important about the distinction between continuous and intermittent leave. I would say something like a major surgery or even a block of radiation because radiation is typically given on consecutive weekdays. That's where you'd be thinking about a continuous leave.
Typically, I'm cycling chemo. Weekly is the most frequent. Often it's actually every two weeks or every three weeks. Sometimes even monthly. So, I'm able to fill out the forms appropriately saying, "Listen. This is exactly the treatment schedule that I foresee. This is how long I think the patient needs off for each treatment." The cyclic nature of medical oncology and things like chemotherapy actually are very well suited to intermittent leave.
Is There Anything I Should Know about Sharing This Information on Social Media?
If you're a cancer patient, should you not be posting anything cancer related if you're looking for a job? What do you do besides making your profiles private? Or do you just simply keep all that out of your social media?
Potential employers will look at social media. But don't forget, you have to live your life so that you are healthy physically and mentally. I think that sharing on social media for a lot of folks is really important. It's valuable to your recovery and strength and emotional wellbeing.
You may want to be part of a private group on Facebook so not everybody has access to it. That's a way to get the community that you need to recover and stay strong, but also keep it separate. Because remember, your health information is yours. It's yours to share. Even your doctor can't share it. You have to choose how you're going to share that.
Yeah. As a patient, I do belong to, in fact I moderate a closed group for patients. It's particularly sensitive because again, my condition is hereditary. There's this whole other layer of needing to keep things private. I actually completely agree with Jill. I think the support and kinship you can find online is powerful. I do think it's important to think about where you're sharing on social media.
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