When is cancer a disability? Disabilities can come in many shapes and forms, and you may be surprised to learn that cancer can be the cause.
With the diagnoses of new cancer cases increasing, it’s unfortunately very likely you will have an employee, or an employee’s family member, fighting this dreaded disease one day. If the situation weren’t difficult enough on a personal level, HR also has to comply with employment laws such as the Americans with Disabilities Act (ADA). It’s more important than ever that you’re aware of the legal and practical challenges that arise when an employee is diagnosed.
In a BLR webinar titled "Employees with Cancer: How to Manage ADA, FMLA, Privacy, and Policy Issues," Jonathan R. Mook and Alan G. Rosmarin outlined some guidance about your ADA obligations in general, and also explained when cancer may be considered a disability (thus falling under the ADA guidelines).
Are you familiar with your obligations under the ADA? In practical terms, Mook explained that the ADA:
- "Prohibits discrimination against individuals with disabilities." This applies to applicants as well as employees.
- "Requires reasonable accommodation," which means that employers must make reasonable accommodations that allow disabled employees to perform essential job functions.
- "Prohibits retaliation against individuals with disabilities," including retaliation against a person for exercising his or her ADA rights, such as requesting reasonable accommodation.
- Prohibits harassment or a hostile work environment based on the disability (including jokes about appearance or harassment because of the accommodations).
The ADAAA (Americans with Disabilities Amendments Act of 2008) went even further. Under the ADAAA, the definition of disability was broadened. It also expands the definition of "major life activities" (which is part of the ADA disability definition).
When is Cancer a Disability?
"The ADA Amendments Act expands the interpretation of the definition of disability in ways that virtually ensures that individuals who are diagnosed with cancer, in one way or the other are going to be covered by the ADA," Mook advised. Additionally, under the ADA and ADAAA, there’s a three-prong definition of disability. Someone may be currently disabled (substantially limited in one or more major life activities), have a record of disability in the past, or be regarded as disabled if they’re treated as such.
For an employee with cancer to be considered disabled, this could be relevant as well. In particular:
- When cancer or its side effects substantially limits one or more of a person’s major life activities, then the person would be considered (currently) disabled
- If cancer was substantially limiting major life activities at some time in the past, this would mean the employee has a record of disability
- If the employer takes action against the individual based on an actual or perceived impairment, such as a cancer that is not transitory and minor, then the employee has been regarded as disabled
These are relevant because anyone who meets any of the three prongs (currently disabled, record of disability, or regarded-as disabled) must be accommodated.
It is also important to remember that the cancer itself may not be the only cause of a disability. There may be related conditions, such as high rates of depression and anxiety or susceptibility to other serious illness. Conditions like these could be the result of cancer and become a disability on their own.
When Cancer Becomes a Disability, What Should You Do?
If you have an employee with cancer who now has a disability under the ADA guidelines, you now have a duty to accommodate them as you would for any other disabled individual. This means you’re required to make reasonable accommodation to allow the disabled employee to perform the essential functions of the position. Naturally this means you must determine what functions are "essential." You’re not under an obligation to alter or eliminate essential functions (although you may do so if you choose).
You’re also obligated to engage in the interactive process, which involves accommodation. This is not triggered by any magic words, but you must engage in the process when the employee makes it known that he needs work change because of cancer. This obligation exists when the employer knows or has reason to know that employee has workplace problems because of any disability.
Cancer as a Disability: What Accommodations May be Appropriate?
Examples of accommodations that may be appropriate for an employee with cancer (deemed as a disability):
- Reduced hours, change in hours, or a flexible schedule
- Rest periods and space in the office to rest during the day
- Work from home (including providing equipment to allow this)
- Reassignment of non-essential functions of the position (or some other adjustment of duties and responsibilities)
- Reassignment to a vacant position (however, watch for FMLA issues before taking this action)
- Creation of a temporary light-duty position (not required, but could be an accommodation if you choose)
- Lock on the employee’s office door and/or use of a private space for calls to/from the doctor
- Modifying the office temperature
- Chair or stool to help with fatigue
- Leave of absence (under FMLA if applicable) or other leave
For more information on employees with cancer, or cancer and disability specifically, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.
Jonathan R. Mook is a founding partner in the firm of DiMuroGinsberg and is a nationally recognized authority on the Americans with Disabilities Act. He has authored two published treatises: "Americans with Disabilities Act: Employee Rights and Employer Obligations" and "Americans with Disabilities Act: Public Accommodations and Commercial Facilities."
Alan G. Rosmarin, MD, is chief of the Division of Hematology/Oncology, which provides expert diagnosis, treatment and support of cancer patients, as well as extensive research and clinical trials, within the Department of Medicine at UMass Memorial Medical Center in Worcester, Massachusetts. Dr. Rosmarin also serves as the deputy director of the UMass Memorial Cancer Center at the University of Massachusetts Medical School and UMass Memorial.