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What Can I Do About Employment Discrimination Due to Cancer?

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Published on May 31, 2019

court-gavelIf you feel like your employer is treating you differently or discriminating against you because you have cancer, you may be protected under the Americans with Disabilities Act of 1990 (ADA).

What is the ADA?

The ADA is a civil rights law that prohibits discrimination against people with disabilities. Title I of the law applies specifically to employers with 15 or more employees. It prohibits employers from discriminating against you based on disability with respect to hiring, awarding promotions, providing training, and administering other privileges associated with employment. The law also forbids employers from asking you questions about your disability and requires them to provide you with reasonable accommodations except in certain limited circumstances.  

Is Cancer a Disability?

The ADA defines a person with a disability as someone with a physical or mental impairment that substantially limits one or more major life activities, including walking, eating, sitting, sleeping, reading, and communicating. Disability status under the ADA is determined on a case-by-case basis. However, cancer commonly qualifies as a disability. If you have cancer and it limits your ability to complete tasks in the workplace, you may consider requesting a reasonable accommodation

What is a Reasonable Accommodation?

A reasonable accommodation is an adjustment of the application process, the hiring process, the job itself, the way the job is performed, or the environment that the job is performed in. Reasonable accommodations for an employee with cancer could include allowing a modified work schedule, allowing more frequent breaks for doctors’ appointments or to recover from treatment, and permitting the employee to use an office telephone to speak to their doctor when it otherwise would be prohibited. An accommodation will be considered reasonable if it does not create an undue hardship on the employer.

When Can My Employer Refuse to Grant Me Reasonable Accommodation or Fire Me?

There are limited circumstances where employers can refuse to grant accommodations. If the accommodation is unrelated to the employee’s disability or creates an undue hardship on the employer by requiring significant expenses, they will not be required to grant it. Employers will also not be required to eliminate an essential function of the job as an accommodation.

Situations may arise that require terminating an employee with a disability, but this is only allowed if the employee presents a direct threat to the employer or other employees. A direct threat is defined as a significant risk of substantial harm to the employee or others that cannot be addressed by a reasonable accommodation. This will require the employer to assess the safety threat based on the available evidence and determine whether the risk can be addressed by a reasonable accommodation or whether termination is the only solution.

Can My Employer Take Away My Health Benefits If They Learn I Have Cancer?

No. The ADA requires employers to offer the same health benefits to all employees, regardless of their disability status. However, this does not mean that your employer will be required to offer you a health insurance plan that includes benefits that would treat your disabling health condition.

What Can I Do if I Feel Like My Employer Discriminated Against Me?

If an employer has discriminated against you on the basis of your disability, the ADA guarantees you the right to file a complaint against your employer to resolve the situation. You can file your complaint with a specific federal agency depending on the type of employer you work for. If your employer is a state or federal agency, you will file your complaint with the Department of Justice (DOJ). If you work for a private employer, you will file your complaint with the Equal Employment Opportunity Commission (EEOC). To ensure that your complaint is handled expeditiously, you should include the following details in the complaint: your personal contact information; the contact information of your employer; a description of the discriminatory acts, including the dates they occurred and the people who were involved; copies of relevant documents; and information on how to communicate with you effectively.

If there is merit to your complaint, the DOJ or EEOC will likely investigate the situation. You may be contacted by the agency and asked to provide additional information. It could take up to three months for the matter to be fully investigated. If the investigation reveals you have a valid case, the agency will invite both parties to informally resolve the issue through a process known as “conciliation.” If the issue cannot be resolved through this process, the agency may file a lawsuit in federal court on your behalf. However, the agency will not act as your attorney in this suit; therefore, it is recommended that you retain your own attorney if your complaint results in a lawsuit. 

If there is not merit to your complaint, the DOJ or EEOC will issue both parties a Dismissal and Notice of Rights that informs the parties that the matter has been closed and that you may file a lawsuit on your own up to 90 days afterward. The DOJ’s Civil Rights Division has published resources to help employees understand their rights under the law and how to take action if those rights are violated.

What Can I Do if My Employer Tries to Take Away My Health Benefits or Fires Me for Taking Medical Leave?

You may be protected by the Family and Medical Leave Act of 1993 (FMLA) if your employer tries to take away your health benefit or fires you for taking medical leave. 

What Are My Rights Under the FMLA?

The FMLA is a federal law that guarantees employees the right to take unpaid leave from work for certain urgent situations, including the birth or adoption of a child, to care for a family member with a serious health condition, or to care for their own serious health condition. The law provides employees with 12 weeks of unpaid leave in a 12-month period. Importantly, the FMLA guarantees that an employee’s health coverage will continue during the period of absence. The FMLA prohibits employers from interfering with, restraining, or denying the exercise of any right guaranteed by FMLA, and it similarly prohibits employers from discriminating or retaliating against an employee or prospective employee for exercising or attempting to exercise those rights. The FMLA applies to all state and federal agencies as well as private employers with 50 or more employers. 

Am I Covered Under the FMLA?

To be protected by the FMLA, you must have had 12 months of employment within the past seven years, you must have worked at least 1,250 hours during that 12-month period, and you must have worked at a site with at least 50 employees or where the employer has at least 50 employees in a 75-mile radius.

How Do I Request Leave and Protect My Health Benefits Under the FMLA?

To request FMLA leave and protect your health benefits, you must provide your employer with adequate notice, which is at least 30 days in advance unless the situation is an emergency. To be eligible to take this leave, your employer may require you to submit a certification from a health care provider that supports your need for leave. If this is required, it will be your responsibility to complete this paperwork and deliver it to your employer. This certification is often required within 15 days of requesting FMLA leave.    

What Can I Do If I Feel My Employer Has Treated Me Unfairly Because I Took Time Off Related to Cancer Care?

If an employer has retaliated against you because you took time off related to your cancer care and you have provided proper notice of your request for leave, you can either file a complaint with the Wage and Hour Division of the Department of Labor (DOL), or you can bring a lawsuit directly against your employer. You will have two years after your employer retaliated against you to file your lawsuit. This deadline cannot be extended to account for the time that a complaint may be pending with the DOL. 

If you choose to file a complaint with the DOL, the agency will likely conduct an on-site investigation of your employer to collect facts relevant to your complaint. This will include examining the employer’s records and interviewing other employees. If the agency determines that the FMLA has been violated, they will meet with your employer to resolve the situation. If the employer is not cooperative, the DOL has the authority to recover lost wages on behalf of employees and impose civil monetary penalties against the employer. If necessary, the agency can also file a lawsuit on behalf of the employee. A lawsuit will likely become necessary if the situation between you and your employer does not neatly fit into the framework of the FMLA. A lawsuit would allow a jury to act as a neutral fact-finder, which could bring more certainty to an unclear situation. Litigation will likely be a lengthier process, but it could result in a larger monetary award for you and stricter punishments for the employer. The DOL has published a guide to assist employees in understanding the FMLA and explaining how to utilize the law to take unpaid leave.

Other Considerations

If you have exhausted your options and your employer has refused to grant you FMLA leave, you can consider reaching out to your state’s attorney general. This state officer could have jurisdiction over the issue you are facing, and they could provide assistance. You can also consider reaching out to the media to put additional pressure on your employer to reverse their decision. If you are having difficulty with this process, you can contact Aimed Alliance and we will provide any assistance possible.

John A. Wylam, Esq.

This is an Aimed Alliance information piece produced by Patient Power. We thank AbbVie Inc. for their support. These organizations have no editorial control. It is produced solely by Patient Power.

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. 

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