Your Employment Rights as a Cancer Survivor
When you work, you get an income along with other important benefits like health insurance.
Working also gives you a feeling of self-esteem. But when you have cancer, you may
run into some blocks along the way to finding and keeping a job. This can lead to
problems with paying bills and getting enough health insurance.
Most employers treat cancer survivors fairly and legally. But this is not always the
case. Some employers may have personnel policies that are outdated or a supervisor who
is not informed or up-to-date. As a result, survivors may face unnecessary and sometimes
illegal difficulties with job opportunities. Some cancer survivors may be let go from
the job or may not be hired. They might be put in lower positions or not get a promotion
or benefits. Others may be moved to a less desirable department or face resentment
by coworkers. But you can protect yourself from job discrimination. Learn how to speak
up for your rights in the workplace. Here's what you need to know.
How job discrimination laws protect cancer survivors
When it comes to your job and what you do as part of that job, federal law and many
state laws say that an employer cannot treat you differently from others because of
your history of cancer. This is true as long as you are capable of doing the job.
These laws protect you only if:
You have the necessary skills, experience, and education needed for the job and you
can do the most important duties of the job in question.
You were treated differently from other workers in job-related activities by your
employer because of your history of or treatment for cancer.
At some time, your cancer greatly limited your ability to do everyday job activities
or your employer thought that your cancer did so.
The Americans with Disabilities Act (ADA) does not allow some types of job discrimination
against people who have or have had cancer. This includes employers who have at least
15 employees, employment agencies, and labor unions. Every state also has a law that
controls, to some extent, job discrimination based on disability. Some laws clearly
do not allow discrimination based on cancer, while others have never been applied.
State laws also vary as to which employers—public or private, large or small—must
obey the law.
Under federal law and most state laws, an employer must provide you a reasonable accommodation.
An accommodation is a change, such as in work hours or duties, so that you can do
your job during or after cancer treatment. Employers can make more than 1 accommodation.
For example, if you need to take time off for treatment, your employer may let you
work flexible hours until you finish treatment. But an employer does not have to make
changes that would be too costly or upsetting to the company.
In some cases, the family members of cancer survivors may be protected from discrimination.
The ADA does not allow discrimination because of a family member's relationship or
association with a person who is disabled. Employers may not assume that a family
member's job performance would be affected if that person needs to care for another family
member who has cancer. For example, employers may not treat you differently because
they assume that you would use too much leave time to care for your spouse who has
cancer. Also, employers that give health insurance benefits to their employees for
their dependents may not decrease these benefits to an employee solely because that
employee has a dependent who has cancer. State laws, however, do not protect you if
an employer treats you differently because a family member has cancer.
According to the ADA and many state laws, discrimination based on genetic information
relating to diseases, such as cancer, is not allowed. For example, an employer may
not ask you for the results of a genetic test or treat you differently because of
your genetic history.
You also may have the right to take medical leave under your employer's policies,
a state law, or federal law. The Family and Medical Leave Act (FMLA) is a federal
law that requires employers with 50 or more employees to provide up to 12 weeks of
leave. During this time, you are not paid, but your job position is protected. This
law covers family members who need time off to care for their own serious health condition (which
includes most cancers). It also covers family members who need time off to care for
a seriously ill child, parent, spouse, or a healthy newborn or newly adopted child. You must
have worked at least 1,250 hours over the past 12 months or about 25 hours per week
for 1 year to be covered. You must also reasonably try to arrange medical care that
is likely to be needed so you do not over upset the workplace. An employer must continue
to provide benefits—including health insurance—during the leave period.
The ADA does not require employers to provide health insurance. The ADA and some state
laws, however, do require those employers who offer health insurance to be fair. For
example, your employer gives health insurance to all employees with jobs similar to
yours, but does not give you health insurance. Your employer's refusal may be considered
discrimination under the ADA. The employer must prove that not giving you health insurance
is based on valid statistics or that the insurance plan would suffer serious financial
problems. For example, if your employer is a small business that can prove it is unable
to get an insurance policy that will cover you, the employer may not have to give
you the same health benefits given to your coworkers.
Every state has laws that control the insurance industry. For example, some states do
not allow insurance companies to look at your cancer history when issuing a new policy.
Contact your state insurance commissioner about the rights in your state. And if you
have health insurance through a group plan at work, 1 federal law—ERISA—prohibits
your employer from firing you to prevent you from collecting your benefits.
How to prevent discrimination
Lawsuits are not the only or the best way to fight job discrimination. State and federal laws against
discrimination help cancer survivors in 2 ways. First, they discourage discrimination.
Second, they offer ways to correct discrimination when it does happen. These laws,
however, should be used as a last resort. They can be high in cost and take a lot
of time. And the results are not always fair. The first step is to try to avoid discrimination.
If that fails, the next step is to attempt a reasonable settlement with the employer. But
if informal efforts don't work, then a lawsuit may have to be the next step.
If you are looking for a new job, you can take several steps to lessen the chance
that you will face discrimination because of your cancer history.
Do not lie on any application. If you are hired and your employer later learns that you lied, you may be let go for
your dishonesty. Insurance companies may refuse to pay benefits or cancel your coverage if
you lie about your condition on an insurance form. Federal and state laws that prohibit job discrimination
do not guarantee that all employers will hold back from illegally asking survivors
about their cancer histories or gaps in education or employment. If you are asked
a question that you think is illegal, give an honest (and perhaps indirect) answer
that emphasizes your current abilities to do the job.
Keep in mind your legal rights. For example, under the ADA, an employer may not ask about your medical history, make you
to take a medical exam, or request medical records from your healthcare provider before
making a conditional job offer. Once an employer has made a conditional job offer,
the employer can require you to have a medical exam only if it is required of all
other persons who apply for the job. The medical exam may take into account only your
ability to safely do the required duties of that job.
Explain any long periods of not working during cancer treatment, if possible, in a
way that shows your illness is past and that you are in good health and are expected
to remain healthy. One way to take the focus off of a gap in your school or work history because of
cancer treatment is to organize your resume by experience and skills, instead of by
Offer your employer a letter from your healthcare provider that explains your current
health status, prognosis, and ability to work. Be prepared to teach the interviewer about your cancer and why cancer often does
not result in death or disability.
Get help from a job counselor or social worker with resume preparation and job interviewing
skills. Practice answers to expected questions such as, "Why did you miss a year of work?"
or "Why did you leave your last job?" Be honest when answering these questions. But
stress your current qualifications for the job and not past problems, if any, resulting
from your cancer experience.
If you are interviewing for a job, do not ask about health insurance until after you
have been given a job offer. Then ask to see the benefits package. Review the information before you accept the
job to make sure it meets your needs.
Do not discriminate against yourself by assuming that cancer leaves you unable to
work. Although cancer treatment leaves some survivors with real physical or mental disabilities,
many survivors are able to do the same duties and activities as they did before having
cancer. With the help of your medical team, do an honest review of your abilities and
compare them with the mental and physical demands of the job.
How to enforce your legal rights
If you suspect that you are being treated differently at work because of your cancer
history, consider an informal solution before jumping into a lawsuit. You want to
stand up for your legal rights without making yourself look like a troublemaker.
If you face discrimination, consider the following suggestions:
Use your employer's policies and procedures to settle employment issues informally.
If you need some kind of modification to help you work, such as flexible working hours
to keep healthcare providers' appointments, suggest several alternatives to your employer.
Teach employers and coworkers who might believe that people cannot survive cancer
and remain productive workers about cancer.
Ask a member of your healthcare team (healthcare provider or social worker) to write
or call your employer to help settle the conflict and suggest ways for your employer
to accommodate you.
Seek support from your coworkers.
If informal solutions don't work, keep in mind these steps to protect your right to
file a lawsuit:
Keep carefully written records of all job actions, both good and bad.
Pause before you sue. Carefully review your goals. For example, do you want your job back or a change in
working conditions? Or do you want certain benefits, a written apology, or something
else? Look at the positive and negative aspects of a lawsuit. Positive aspects can include
getting a job and monetary damages, protecting your rights, and tearing down blocks
for other survivors. Negative aspects can include long court battles with no promise of winning. Some
cases can drag on for 5 years or more. And there can be legal fees and expenses and
stress. You can experience a harsh relationship between you and the people you sue
and a reputation in your field as a troublemaker.
Consider settling your complaint in an informal way. Someone, such as a union representative, human resources or personnel officer of
your company, or a social worker, may be able to assist you and act as a go-between.
Your state or federal representative or local media may help influence your employer
to treat you fairly. Keep in mind that the first step most government agencies and
companies take when they receive a complaint is to try to resolve the dispute without
a costly trial.
Be aware of filing deadlines so you do not lose your option to file a complaint under
state or federal law. You have 180 days from the date of the action against you to file a complaint under
the ADA. You would file the complaint with the U.S. Equal Employment Opportunity Commission.
If you work for the federal government, you have only 45 days to begin counseling
with an equal employment opportunity counselor. Under most state laws, you have 180
days to file a complaint with the state agency. If you file a complaint and later
change your mind, you can drop the lawsuit at any time. To file a lawsuit, you must
follow the procedures established by each law.
Americans with Disabilities Act. To file a complaint related to your cancer history with an employer, covered by the
ADA you must file a complaint with the Equal Employment Opportunities Commission (EEOC)
to enforce your rights. To get the location of the EEOC office in your area, call
the EEOC Public Information System in Washington, DC at 800-669-4000. You can get
publications from the EEOC that explain the ADA and how to enforce your rights under
the law by calling 800-669-EEOC.
Family and Medical Leave Act. To file a lawsuit under the FMLA, you have 2 choices. You may file a lawsuit in court.
Or you may file a complaint with the Employment Standards Administration, Wage and
Hour Division of the U.S. Department of Labor. For information about the Department
of Labor office closes to you, call 866-4USWAGE. Most complaints filed with the Wage
and Hour Division are resolved informally.
State laws. Most states have a state agency that carries out the state fair employment practices
law. Some states allow you to file a lawsuit in state court. For more information
about the laws in your state, check out your state division on civil rights or human
rights commission, or an attorney who is experienced in job discrimination cases.
The EEOC Public Information System at 800-669-4000 can help you find the appropriate
state enforcement agency. Also check your local telephone book under "State Government."
Even if your legal rights were violated, there is no guarantee that a public agency
or court will give you a fair solution. A trained job counselor, social worker, nurse,
or clergy may help you deal with the personal issues that result from job discrimination
due to your cancer history.
You can learn more about your employment rights and cancer survivorship from the National
Coalition for Cancer Survivorship:
8455 Colesville Road Suite 930
Silver Spring, MD 20910
You can learn more about your employment rights and other basic skills to meet challenges
posed by a cancer diagnosis from the Cancer Survival Toolbox. The Toolbox is a free set of audio programs developed by the National Coalition for Cancer Survivorship,
Oncology Nursing Society, and Association of Oncology Social Work. The programs are
available in English and Spanish and cover:
Standing up for your rights
Covering topics for older persons
Finding ways to pay for care
The Toolbox can be found at: http://www.canceradvocacy.org/toolbox/.