Knowledge Is Power

February 19, 2019
Dara Chadwick

Understanding federal and state laws can protect workers who have cancer.

Cancer tends to produce a ripple effect: Its impact on physical and emotional health often leads to changes in how and when people work, which, in turn, can create significant financial challenges.

Among the work-related questions of people who have cancer: Can I keep working? Will I lose my paycheck or my health insurance? Could I get fired if I take time off to have treatment or because I don’t feel well? Can my work tasks, hours or environment be modified?

Fortunately, both state and federal laws protect the rights of working people with cancer, but it’s important to understand which laws might apply to an individual’s situation, says Rebecca Nellis, executive director of Cancer and Careers, a New York City-based national nonprofit organization that helps people navigate the intersection of work and cancer. “The law is a tool that can make things easier,” she says, “but understanding your rights and dealing with them at work are two very different things. You need to know what you have access to and how to make it work for you in your job at your company.”

Lack of a specific legal protection, however, doesn’t mean a person who has cancer can’t work. “All hope isn’t lost if the law isn’t a tool for you,” Nellis says. Some patients find protection and help via company policies and supportive supervisors. Each workplace has its own culture, and it’s critical to understand what that entails, she says. “Someone’s work experience and their response to it is as unique as their cancer treatment plan and response to it,” Nellis says.

FEDERAL LAWS TO PROTECT

If someone is concerned about the effect of a cancer diagnosis on their job or health insurance, they should learn how federal and state laws may protect them. Generally, three major federal laws offer protection to workers: the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and the Affordable Care Act.

Generally, the ADA protects someone who works for a private employer with 15 or more employees or for a state or local government, labor organization or employment agency. (In federal agencies, employees are typically covered by the Rehabilitation Act.) To be protected by the ADA, an employee must be considered a “qualified individual” — someone who can perform the job’s essential functions, with or without reasonable accommodations, and has a disability. According to the ADA Amendments Act of 2008, a disability is defined as a physical or mental impairment that substantially limits a “major life activity,” such as the ability to walk, breathe, concentrate or sleep. Individuals with disabilities also include those who have a history of a substantially limiting impairment. According to the U.S. Equal Employment Opportunity Commission, people who have cancer or are in remission typically are protected by the ADA.

In addition to making discrimination in employment practices unlawful, protections under the ADA include “reasonable accommodations,” such as changes to workspaces or schedules, using technology to assist with job duties, more frequent breaks and telecommuting.

The FMLA allows eligible employees to take up to 12 weeks of job-protected unpaid leave each year, with continuation of group health insurance coverage, for their own serious medical condition or to care for a child, parent or spouse with a serious condition. Generally, this applies to private employers with 50 or more employees, along with certain public agencies and employers, regardless of number of employees. To learn more, visit dol. gov/whd/fmla.

The Affordable Care Act gave consumers of health care new rights and benefits, offering health insurance protections for people with employersponsored insurance if they need to leave a job, according to Monica Bryant, chief operating officer for Triage Cancer, a Chicago-based nonprofit association focused on the practical and legal issues of people with cancer. The law also helps people qualify for a special enrollment period to buy insurance on an exchange, go back on their parents’ insurance plan if they’re under age 26 or potentially qualify for Medicaid if they live in a state that has expanded Medicaid. To learn more, visit healthcare.gov.

Another federal law of note is the Genetic Information Nondiscrimination Act of 2008, which prohibits employers with at least 15 employees from using genetic information to make decisions about hiring, promotions, compensation, termination and other employment matters. The law helps protect employees from discrimination based on genetic testing — for example, if an employer with a selffunded insurance plan inadvertently gains access to medical information through claims data. “Your company might know if you’ve had a BRCA test,” Bryant says. “Ultimately, they’re not supposed to make decisions based on that knowledge.”

Other federal laws that help people keep and use their group health insurance include the Employee Retirement Income Security Act of 1974, which offers appeals protections to people who’ve been denied coverage, and the COBRA health insurance law.

Officially called the Consolidated Omnibus Budget Reconciliation Act, it helps people maintain their health insurance after they’ve left a job or reduced their working hours.

STATE LAWS AND EMPLOYER POLICIES

Although federal laws provide broad protections to employees who qualify, it’s important to understand applicable state laws, too. “I cannot stress the importance of state laws enough,” Bryant says. “The problem is that so many times, people don’t know what they don’t know.”

Comprehensive online resources like Triage Cancer provide a good starting point by listing state resources. A person can also contact their state’s Department of Labor or Equal Employment Opportunity Commission.

Another important source of protection might be found in a company’s employee manual. “Know your employer’s policies and follow their processes,” Bryant says. “If other employees are already telecommuting, it’s easier to get that as an accommodation. Laws are the bare minimum of what an employer has to provide.”

Nellis suggests pulling together all information about possible aid, including benefits and company policies. “Think about your own work environment and come up with a strategy,” she says. “If you want to stay at work, think strategically about how to make it work. It’s easier to do when you’re protected by state or federal law, but the law is just one way.”

WORKPLACE RIGHTS

One of the biggest concerns for people with cancer is disclosure — how much they need to tell their employer. The short answer? Less than a person might think. “Disclosure doesn’t mean every detail of what you’re going through,” Nellis says. “Disclosure isn’t all or nothing. It’s a spectrum.”

Approaches regarding disclosure are as individual as workers themselves. “Some folks want to keep things private and schedule all their treatments in the early morning or evening,” says Shelley Fuld Nasso, chief executive officer for the National Coalition of Cancer Survivorship in Silver Spring, Maryland. “Some survivors want to continue working for the sense of normalcy, while others don’t have a choice.”

Those who want to keep information about their illness private are entitled to do so; however, they may have to disclose some information to access reasonable accommodations or rights under the FMLA, Bryant says.

Pay attention to medical certification forms, she advises. An employer is entitled to have a health care provider certify a medical condition before providing a reasonable accommodation, but Bryant encourages people with cancer to have a conversation with their doctor about what will be disclosed. “For example, a health care provider can certify that an employee has severe nausea or fatigue,” she says. “The certification doesn’t have to mention chemotherapy.”

If someone decides to disclose their illness, Nellis suggests framing the situation as fluid. “Be clear that this is what you know right now, but things can change,” she says. “Set up an open line of communication.”

BE PROACTIVE

For people who worry about how treatment might affect their ability to do their job, Nellis suggests a proactive approach, such as keeping a work diary. “You might keep a record of the date you decided to disclose and who you disclosed to,” she says. “You might acknowledge that you had a challenge at work that involved slipping up on a project.”

She also suggests recording details about projects, keeping emails and voicemails as reminders regarding work in progress, and scheduling blocks of time for focused work.

“Done together, these things might create a safety net,” she says. “Remember the employer’s lens. Set expectations by saying ‘I recognize that we need to get X, Y and Z done. Here’s how I think this could happen.”

Both Nellis and Bryant advise people with cancer to consider their employment future when deciding how much to disclose on the job. “We have people say, ‘My employer is so great,’” Bryant says. “But you may not have that job or supervisor forever. Disclosure is a bell you can’t unring. You have the legal right to access benefits without disclosing.”

And if someone feels they have been treated differently or discriminated against because of their cancer? The response depends on a person’s goals, Bryant says. “If all you want is to be the best employee you can be, you might have a conversation with your supervisor,” she says. “Other people no longer want to work for that employer and want to teach them a lesson.”

Still, she encourages people to pause before taking legal action: “We don’t want people to jump to filing a lawsuit if there are things in between they can do.”

Caregiver Rights

WHEN A LOVED ONE is diagnosed with cancer, many people want to take time off work to assist with transportation to treatment and post-treatment care. Unfortunately, caregivers don’t have access to the same legal protections that patients have.

Caregivers are not entitled to accommodations under the Americans with Disabilities Act, according to Monica Bryant, chief operating officer for Triage Cancer, based in Chicago. The Family and Medical Leave Act (FMLA) provides up to 12 weeks of job-protected unpaid leave, with continued group health insurance coverage, to care for a seriously ill family member, but its definition of family includes just a child, parent or spouse. “FMLA does not include grandmothers, mothers-in-law, siblings or grandchildren,” Bryant says.

Some states, including California, New Jersey, New York and Rhode Island, have paid family leave laws, which may offer some protection to employees caring for an ill family member. People should check with their state’s Department of Labor to learn more about state laws that may protect them.

Although legal protections are fewer for caregivers, Bryant encourages people to talk with their employers. “These requests often fall under the ‘it can’t hurt to ask’ umbrella,” she says. “Employers want to keep valuable employees.”

She also encourages caregivers to advocate for legal changes. “We have the existing rights we have because of advocates who came before us,” Bryant says, adding that there’s always room for improvement. “We encourage advocacy because no law is perfect. Let’s get some more rights for caregivers.”

Protecting Your Rights

Get Connected

DO YOU NEED MORE information about protecting your rights in the workplace? Here are a few places to start:

4 Cancer and Careers

cancerandcareers.org

646-929-8032

4 CancerLinc

cancerlinc.org

804-562-0371

4 Job Accommodation Network

askjan.org

800-526-7234

4 National Cancer Legal Services Network

nclsn.org

4 National Coalition for Cancer Survivorship

canceradvocacy.org

877-622-7937

4 Triage Cancer

triagecancer.org

424-258-4628


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