Published on October 8, 2020
What Workplace Accommodations Should Your Employer Grant?
Is cancer considered a disability under the law? What accommodations does your employer legally have to provide once you disclose your cancer diagnosis? How do you navigate these kinds of conversations in the workplace?
Listen in as employment and civil rights attorney Jill Silverstein explains the term “reasonable accommodations,” as well as what your employer is required to provide. She is joined by Dr. Mark Lewis, a practicing oncologist who contributes his personal experience as a cancer patient, and Esther Schorr, patient advocate and co-founder of Patient Power. The panel will discuss different types of workplace accommodations, what measures your employer is required to take, and when it is or is not necessary to disclose your diagnosis at work.
This is Part 3 of a 3-part series. Watch all segments in the series below:
- Part 1: Diagnosing My Own Cancer: Oncologist Shares His Cancer Story
- Part 2: Cancer in the Workplace: Do I Need To Tell My Boss?
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: What Are Reasonable Accommodations?
Is My Workplace Legally Obligated to Provide Accommodations?
Jill, what are the specific legal requirements for an employer when they're notified by a patient that they need these accommodations? That they have a diagnosis? Are there specific legal requirements that an employer has to abide by?
Just in general, cancer is considered a disability under the law. So, if you have cancer and you can perform your work, nothing changes. You go to work. You do your work. You go home. You perform the same as everybody else. If though you need an accommodation, let's say you can't stand on your feet as much because you're tired as a result of therapy. You talk to your employer. You tell them you need this accommodation.
Quite often they will request a note from your doctor. The doctor will say, "Oh, Sally can perform her work, but she needs to take breaks more often. Let her take a break every 10 minutes or she can't stand on her feet." The important thing is that the employer is obligated to give you an accommodation as long as it's reasonable. And as long as with that accommodation, you can perform the essential functions of your job.
What Are Reasonable Accommodations?
It's not reasonable to say, "Well, I get to sit down at my desk and watch TV because it's too hard to stand up." That's not reasonable. If it's a small thing, for example, I had a client who was a breast cancer patient. She had been going through chemotherapy. Her employer would not let her work from home when she could work from home. That's a reasonable accommodation. The thing you look at, the employer will say, "Well, if you do this, it's going to stop all of my processes. It will slow down the business." That's what they look at, what's called an undue hardship. The key thing is that the employee who has the disability, that has cancer, has to be able to perform the essential functions of their job.
Can my employer fire me if I'm doing my job, but I can't physically go into work? Can they say I'm not doing my job and how can I prove it? How does that get reconciled?
Again, it all gets back to, what are the essential functions of your job? Can you perform your job if you're working at home? Does your job require you to work in an office environment where you collaborate with other people? Even then, you still may be able to work at home as we've learned from COVID. We do a lot of collaboration now.
If the essential functions of your job, you can perform those while at home, it requires a discussion with your employer saying, "Hey, I can do all these. Why can't I just work from home?" If they don't have a rational reason, then again, you can say, "Well, it's not fair." You may need to do something. It's not necessarily illegal, but they're changing the terms or conditions of your employment.
This is a very interactive process with your employer. You need to discuss, what can you do? What can't you do? And the one thing I just might add as you do go through this process, keep notes. Just keep in your calendar. Meeting with HR to ask about this. Met with my boss to ask about this. Just to keep notes of it. Hopefully, you'll never need it. Maybe there will be questions later on down the line.
Do I Need to Disclose My Diagnosis and Accommodations to Potential Employers?
If you're interviewing for a job and you have a diagnosis or you are about to head into treatment, should you disclose at that point?
Why would you disclose? Would you tell your employer what medicine you're taking that morning? Would you tell them if you're pregnant? No. I wouldn't disclose. The only thing is, if knowing that the week after you start, you're going to have to go into surgery and you have things planned, then that's going to interfere with the performance of your job. If at the time you interview, even though you have a diagnosis, if you don't foresee it's going to interfere with the performance of your job, that's your personal information. You keep that private.
You're in control whether it's telling your employer or giving your doctor, your physician authorization to share that information. You have to evaluate if it's important to be able to advise your employer so they know about this so they can accommodate you in the future if you need some modification of your work schedule or something to accommodate any treatment or recovery. Keep that in mind.
You have a very supportive community. Everybody is very empathetic. They understand and are open. Not all employers are like that. As much as you have shared information with each other and find great support in that, I hate to say this. You need to be careful in your work environment. Because not everybody understands.
Remember, you have to opt-in to disclosure. The American medical system is set up where again, your confidentiality is a fundamental right. It's one that if I violate as a doctor, I could literally lose my license and my job. It's held to that degree of seriousness in our profession. If you're asking oncologists to fill out FMLA paperwork, there's inherently a disclosure that you have cancer.
Again, when you're first meeting your oncologist, don't feel the anticipation of everything is up to just your judgment. You can rely on that doctor's experience with patients like you in your treatment and ask, "Hey, listen. Am I going to be able to keep working? What is a realistic expectation?" That's something that we ought to be able to provide.
Right. In all of this, communication, communication, communication.
Please remember the opinions expressed on Patient Power are not necessarily the views of our sponsors, contributors, partners or Patient Power. Our discussions are not a substitute for seeking medical advice or care from your own doctor. That’s how you’ll get care that’s most appropriate for you.