Updated: Jan 27
Employment Rights For Cancer Patients And Survivors
California has one of the most inclusive worker protection laws. For example, suppose you are a patient, survivor, or caregiver of someone with cancer. In that case, you are entitled to protections under California Employment Laws.
For cancer survivors and their caregivers, working typically satisfies a fundamental financial and emotional need. Employment can give a source of support, feelings of productivity, and even normalcy and provide income and crucial benefits such as health insurance. On the other hand, cancer can make it challenging to find and keep a job and make it difficult to pay bills and receive proper insurance.
While many employers support their employees after a cancer diagnosis, some employers may mistreat cancer survivors and caregivers due to antiquated personnel policies or a uniformed or misled supervisor. Dismissal, failure to hire, demotion, denial of well-deserved promotions, denial of benefits, unfavorable location and department transfers, and coworker animosity are all challenges that some survivors face.
Cancer survivors and their caregivers can best protect themselves from discrimination in the workplace by learning how to fight for their rights.
Laws Against Discrimination in the Workplace
According to federal and state rules, as long as you are suitable for the job, your boss can't treat you differently because of your history of cancer. However, these laws may only protect you if you meet the following criteria:
You are qualified for the work (you have the required skills, experience, and education) and can perform the job's fundamental functions.
Because of your diagnosis or history of cancer, your employer handled you differently than other employees in job-related activities.
Your cancer may have significantly reduced your capacity to undertake everyday duties at one point, or your employer may have assumed that your cancer had done so.
The Americans with Disabilities Act (ADA) forbids private businesses (with at least 15 employees), employment agencies, and labor unions from discriminating against people who have or have had cancer. Furthermore, every state has a statute that governs disability-based workplace discrimination to some extent.
Some laws expressly ban discrimination based on cancer, whereas others have never been applied to cancer patients.
According to federal and most state regulations, employers have the right to know only if you can do the job when you apply for it. Therefore, unless you have a visible disability that the employer believes impairs your current ability to perform the job, a potential employer may not inquire about your medical history.
If things are still unclear to you, get a referral from one of our prescreened Los Angeles Employment Lawyers to help you nail down the specifics of your case.
Here are a few more instances where an employer may inquire about your health:
An employer can ask further questions about your health after you've been offered a job, but only if all (similarly situated) employees are asked the same questions.
When you request reasonable accommodations. These are accommodations that disabled employees can request— such as a change in work schedule, use of technology, change in the workplace, or even a policy change—that an employer makes to help you do your work tasks during or after cancer treatment.
If you require time off for treatment, for example, your employer may be able to accommodate you by allowing you to work flexible hours until your treatment is completed.
However, an employer is not required to make modifications that would cause them excessive difficulty.
In some cases, cancer survivors' caregivers may be protected from discrimination. For example, the ADA forbids discrimination based on a person's relationship or association with a disabled person.
Employers may not expect your job performance to be impacted by your need to care for a cancer-stricken family member. Employers may also not treat you any differently because they think you'll take a lot of time off to care for your cancer-stricken spouse.
While carers have the right to be protected from discrimination at employment, they do not have the right to reasonable accommodations.
Medical And Family Leave Rights In California
The Family and Medical Leave Act (FMLA) is a federal legislation that requires employers to provide up to 12 weeks of job-protected leave to employees who need time off to care for a severely ill child, parent, spouse, or a healthy newborn or newly adopted child.
The FMLA stipulates that the company must employ 50 or more people within a 75-mile radius of the employee's place of employment. Therefore, if a business has many offices or branches within 75 miles of each other, with a total of at least 50 employees, the FMLA applies.
During the previous 12 months, an employee must have worked for their employer for at least 12 months and 1,250 hours. It is not necessary for the 12 months of work to be consecutive.
An employee could work for one employer for five months, quit, return, and work for another seven months before becoming eligible for FMLA leave. An employee can add up the 12 months by looking back seven years in their work history, as long as they worked a total of 1,250 hours in the previous year.
An employer is required to continue to provide health insurance coverage to the employee and any covered dependents while on FMLA leave. If an employee requests for a leave under the FMLA, an employer cannot:
Fire them for requesting a leave
Fire them because they took a leave
Openly and unjustifiably criticize and humiliate them
Cut their salaries
The above examples are instances of wrongful termination and retaliation and are grounds for employment claims in California. If you experienced this due to discrimination or as means of punishing you for executing your employee rights, contact an Employment Lawyer in Los Angeles to help you file your claims to the proper agencies.
However, when an employee needs to take time off, they must give the employer adequate notice. For example, if a leave of absence is expected, the employee must notify the employer of 30 days. If the leave is unforeseeable, the employee must inform the employer as soon as possible.
ADA Protections For Employees
The Americans with Disabilities Act (ADA) is a federal legislation that forbids discrimination against qualified individuals with disabilities, as revised by the ADA Amendments Act of 2008 ("Amendments Act" or "ADAAA"). Individuals are considered to be disabled when:
They have impairments that significantly limit a major life activity
Have a record of a substantially limiting impairment
Have apparent disabilities that might limit their ability to perform activities
Employers with 15 or more employees and state and local governments are covered under ADA. Similar safeguards exist for government employees under Section 501 of the Rehabilitation Act. Furthermore, most states have their own laws preventing handicap discrimination in the workplace. Some of these state-speciific laws may apply to small businesses and give safeguards beyond those provided by the ADA.
The Equal Employment Opportunity Commission (EEOC) of the United States enforces the ADA's employment regulations. This article describes how the ADA relates to job applicants and workers who have or have had cancer. It is one of a series of question-and-answer documents covering specific impairments in the workplace.
This document, in particular, explains:
When an employer may ask about an applicant's or employee's cancer and how it should handle voluntary disclosures.
What forms of reasonable accommodations cancer-affected employees may require.
How an employer should manage safety concerns about cancer-affected candidates and staff.
How a company may ensure that no employee is harassed because of a disability such as cancer.
That said, it's possible for an employer to violate multiple worker protections for each discriminatory or retaliatory act. When it gets too complicated to handle on your own, consult a prescreened Employment Lawyer in Los Angeles to help you sort through the evidence and legal grounds you have.
When Do You Tell Your Employer?
The ADA places tight restrictions on when an employer may inquire about an employee's medical status or request to undergo a medical examination. Once on the job, an employee's actual performance is the best indicator of his ability to accomplish the job.
Before sharing information about their condition for the first time, most people find it helpful to first consider everything they want to say. When speaking with a potential employer, you should discuss the following topics:
The result of the examination
What impact your therapy may have on your work
Ways you and your employer can collaborate to overcome the difficulties of working while undergoing treatment
Ways your employer can arrange and accommodate for when you have to take a medical leave for treatment
The more you understand the law, the better you'll be able to communicate your expectations and any changes you and your employer may need to make. You don't have to request these accommodations right away. However, it's essential to know what types of accommodations are accessible.
A job leave is the most evident accommodation during and after treatment. Patients with cancer should plan not just for surgery and medical appointments but also for weariness and subsequent illnesses.
Some cancer patients ask for extra rest or medication breaks during the day. Temporary or permanent transfer to less physically demanding positions and working from home are other typical adjustments. Because it is typically the employee, not the employer, who recognizes the need and the most appropriate accommodation, familiarizing yourself with the possibilities is beneficial.
An employer is not obligated to accommodate every request. They just have to agree to accommodations that do not put them in a difficult position.
They don't have to cut productivity criteria if they require critical job activities to be completed. Your employer may respond to your requested accommodation with a less difficult-to-implement option. The majority of businesses are eager to collaborate with their employees to find a solution. However, you may be responsible for informing them about your needs and making accommodations to help you succeed.
If your employer forces you to disclose your health status when it has nothing to do with your work, or if they pressure you to do so by threatening to retaliate, contact an Employment Lawyer in Los Angeles to help you out.
When An Employer Asks In Case Of Potential Work Hazards
When it comes to workplace safety, employers should avoid acting on biases, fears, or preconceptions. Instead, the employer should assess each employee based on her abilities, education, experience, and experience with cancer.
So, when can an employer refuse to recruit, fire, or limit the duties of someone who has or has had cancer due to safety concerns?
Only when a person with cancer poses direct harm to others can an employer refuse them a job. A "direct threat" is a significant danger of serious harm to the individual or others that cannot be avoided or lessened through reasonable accommodations.
This decision must be based on objective, verifiable evidence, such as the most up-to-date medical evidence and improvements in cancer treatment.
The employer must examine the individual's current capacity to safely do the work while making a direct threat assessment. Employers must also take into account the following factors:
How long the risks will be there
The nature and possible severity of the harm
The probability of potential injury
The imminence of the hazard
The threat brought by your health status must be real and imminent, not hypothetical. Finally, the employer must assess whether any reasonable accommodations (such as temporarily restricting an employee's responsibilities, temporarily reassigning an employee, or temporarily placing an employee on leave) would lessen or eliminate the risk.
However, if your status doesn't indeed have any health or safety hazards in the workplace, the act of rejecting your application or terminating you can be considered an act of discrimination. Consult an Employment Lawyer in Los Angeles to help you file claims to the appropriate agencies when this happens.
Who Should You Tell About Your Health Status at Work?
You are not required to inform your employer about your cancer. Your boss is only allowed to inquire about your medical condition if they believe it hurts job performance or workplace safety.
However, to be covered by the ADA, your employer must be aware that you have cancer. Therefore, if you request disability or medical leave, your employer has the right to require medical documents.
Start by telling your immediate supervisor once you've decided you have enough information about what to expect during and after therapy. It's fine if they ask you questions that you can't answer. Your goal is to establish expectations and develop lines of communication. Expect your boss to be unaware of your rights under the Americans with Disabilities Act.
Your employer's Human Resources department, on the other hand, should be. You should notify HR if your supervisor fails to do so after you report your illness.