Protections in Place

CUREFall 2013
Volume 12
Issue 3

There are legal protections in place for survivors in the workforce.

When the Americans with Disabilities Act (ADA) was passed in 1990, cancer survivors were relieved, believing the legislation would protect them from workplace discrimination, says Barbara Hoffman, a lawyer and instructor at Rutgers School of Law in Newark, N.J.

But that didn’t always happen. Some federal courts balked at applying the ADA to cancer survivors, Hoffman says, adding: “It was a Catch-22.” On one hand, courts sometimes said survivors didn’t have a substantial, activity-limiting impairment because they were able to work. On the other hand, some courts said that if survivors couldn’t perform certain duties of their job, they weren’t qualified to hold the job. Either way, many claimants’ cases were dismissed before making it to trial.

Then, in 2008, Congress passed the ADA Amendments Act (ADAAA), intended to broaden the definition of “disability.” Among its relevant provisions was that employees taking maintenance medication could still be considered disabled, even if the medication helped their impairment. And employees in remission from cancer could also be defined as disabled, so long as the condition, if active, would be limiting.

Although it’s too soon to evaluate the amendment’s effectiveness, “We think it’s working” to expand access to the law’s protections, Hoffman says. Her analysis shows that the number of cancer-based claims under the ADA rose to 951 in 2011 from 707 in 2008. Moreover, “the number of cancer-based employment discrimination claims that have been resolved favorably for the plaintiff has nearly doubled” since the ADAAA passed, she says.

There have been attempts to expand access to the Family Medical Leave Act by lowering the number of employees an employer must have (currently 50), or by permitting people to take leave to care for siblings, grandparents, grandchildren or domestic partners under certain circumstances. (Right now caregivers are eligible for the leave only to help a child, spouse or parent with a serious health condition.) That would also expand the protected caregiver ranks for cancer patients. So far, none has been successful, says Joanna Fawzy Morales, a cancer-rights attorney and CEO of Triage Cancer, a nonprofit organization offering education and resources on cancer survivorship issues.

In addition, some states have tried to pass requirements that certain employers provide paid sick leave. No federal law requires it, and only Connecticut and a handful of localities—including San Francisco, Seattle and, most recently, Portland, Ore.—have their own laws guaranteeing paid leave.