No 'One Great Answer' When it Comes to What Rights Those Affected By Cancer Have When Returning to Work Amid COVID-19
There are some job protected options for patients with cancer, survivors and caregivers to consider when it comes to returning to work during the COVID-19 pandemic. But, as one cancer rights attorney notes, there are many challenges to those options.
BY Ryan McDonald and Monica Bryant
PUBLISHED July 29, 2020
As the novel coronavirus spread across the world, millions of people were ordered to shelter inside their homes and limit any contact with others to prevent the spread of the virus.
One measure instituted in the United States was to limit the number of people working in office environments. So, people who were deemed non-essential employees were asked to work from home if they had the ability to do so. Thousands of offices were shuttered to prevent the spread of the virus, and many people found themselves working from home for the foreseeable future.
For many cancer survivors and patients with cancer, the notion of working from home may have been a welcome change, especially for those who feared contracting the virus as a result of their compromised immune systems.
However, as reopening efforts cautiously begin in some parts of the country, the idea of returning to work may create a sense of urgency in those affected by cancer to find out what, if any, options they have when it comes to protecting themselves at work.
“This is, I think, the most common question we're getting right now unsurprisingly, but it's not just from the patients themselves or the individuals who've been diagnosed,” Monica Bryant, chief operating officer of Triage Cancer, said in an interview with CURE®.“The caregivers are also coming to us with those questions.”
Bryant, a cancer rights attorney, discusses the options patients with cancer, survivors and caregivers now how during these uncertain times of possibly returning to work during the COVID-19 pandemic.
This is, I think, the most common question we're getting right now unsurprisingly, but it's not just from the patients themselves or the individuals who've been diagnosed; the caregivers are also coming to us with those questions. Because of the concern of, “Well, if I go back to work, I could potentially then expose my loved one who has a compromised immune system. So, what protections do I have?”
And unfortunately, there isn't one great answer here. We recently just wrote a blog that walks through all the different (return to work) options with some additional information. But briefly, if we're talking about the individual who's been diagnosed, the first step is to figure out what is the goal of the employee. So, if it's to stay at work, then there are a couple of options. I would say, if they've been telecommuting, can they request the reasonable accommodation to continue to do so. The law says that employers have to provide the reasonable accommodation unless it's an undue hardship or a direct threat. And that's a pretty high bar for the employer to have to meet.
So, if somebody's been successfully telecommuting thus far, the argument becomes a little harder for the employer to make that it's not possible to continue to telecommute. The challenge is for people who maybe were furloughed and have a job that can't be done via distance work. What options are there then?
Turns out there actually are some depending on the work environment and the person's job. So, can they wear a mask? Can they work in a singular office as opposed to the open floor plan? Can they work off hours so, (they’re) still going to go into the office, but (they’re) going to do it when nobody else is there. And (could they) wipe down (their) surfaces and be protected? Is there additional filtration equipment that can be installed and used?
Those are just some examples that we've been talking to callers about recently. But that reasonable accommodation piece is going to be valuable for people who want to stay at work. If the option is to take time off, there are some options ... that employee (is) eligible for any paid time off that we're talking like sick time or vacation time, (but) the challenge with that is sick time and vacation time is not job protected. So, an employer could potentially make an employment decision like a demotion or letting somebody go if they're out on sick time or vacation time.
So, there are some job protected options. The new piece of legislation I was referring to is the Families First Act and it did lots of things but related to today, it created a paid sick leave option. And this is unique because the sick leave options we've had in the past are unpaid like the FMLA (Family Medical Leave Act). The challenge with Families First is that this paid sick leave is only available to individuals in limited circumstances. And it's going to be for six reasons. For example, (if) you've been exposed to COVID-19 (and) you've been recommended to self-quarantine because of possible exposure. The challenge is that having a compromised immune system and being concerned about exposure doesn't qualify as one of those six reasons under Families First, and that's the position that a lot of our community is finding themselves in.
Now, some states have actually taken this a step further and said, you know, if a health care professional has recommended that you quarantine due to your compromised immune system that you would be eligible for some benefits, but that's not going to be the case for everybody. Now, the Families First Act also created emergency FMLA leave. And this is for individuals who have to care for a child whose school has been closed or doesn't have the ability to get childcare somewhere else. So that's, again, pretty narrow. And that piece says they cannot work or telework. So, if they have a job where they can telecommute, they're not going to be eligible for that particular leave.
So, then that leaves us with the traditional FMLA. But the challenge with that is it is unpaid leave, and most of us can't go twelve weeks without any sort of income coming in. And outside of COVID, if somebody were to take FMLA if they had access to a short-term disability policy that could potentially kick in and provide some income, but the challenge right now is what we're seeing with most disability policies, is they're saying just having a compromised immune system and being scared of, or fearful of contracting COVID, doesn't qualify as a disability and therefore we don't have to pay out. So, it really puts individuals in this very challenging limbo situation with respect to keeping their job protected but maintaining some sort of income as well.