Despite significant gains in cancer survival rates, individuals with cancer often face discrimination because of their supervisors' and co-workers' misperceptions about their ability to work during and after cancer treatment. Even when the employee's prognosis is excellent, some employers expect that a person diagnosed with cancer will take long absences from work or be unable to focus on job duties.
As you face a cancer diagnosis and treatment, be aware of the legal protections afforded you under the law, such as the Americans With Disabilities Act.
The ADA is a federal law that prohibits discrimination against qualified individuals with disabilities, and it strictly limits the circumstances under which an employer may ask questions about an employee's medical condition or require the employee to have a medical examination.
To give you all the information that you and your manager should have, the team at your employee benefit Work Stride: Managing Cancer at Work provides answers to some frequently asked questions (source: U.S. Equal Employment Opportunity Commission).
Q: When may employers ask an employee whether cancer, or some other medical condition, may be causing their performance problems?
A: Generally, employers may ask disability-related questions or require an employee to have a medical examination when they know about a particular employee's medical condition, have observed performance problems, and reasonably believe that the problems are related to a medical condition. At other times, employers may ask for medical information when they have observed symptoms, such as extreme fatigue or irritability, or have received reliable information from someone (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer's existing policies concerning performance.
Q: May employers require an employee on leave because of cancer to provide documentation or have a medical exam before allowing her to return to work?
A: Yes. If the employers have a reasonable belief that the employee may be unable to perform her job or may pose a direct threat to herself or others, employers may ask for medical information. However, employers may obtain only the information needed to make an assessment of the employee's present ability to perform her job and to do so safely.
Q: Are there any other instances when employers may ask an employee with cancer about her condition?
A: Yes. Employers also may ask an employee about cancer when they have a reasonable belief that the employee will be unable to safely perform the essential functions of her job because of cancer. In addition, employers may ask an employee about her cancer to the extent the information is necessary:
- To support the employee's request for a reasonable accommodation needed because of her cancer
- To verify the employee's use of sick leave related to her cancer if the employer requires all employees to submit a doctor's note to justify their use of sick leave
- To enable the employee to participate in a voluntary wellness program
Keeping medical information confidential
With limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Under the following circumstances, however, employers may disclose that an employee has cancer:
- To supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee's work restrictions
- To first aid and safety personnel if an employee may need emergency treatment or require some other assistance at work
- To individuals investigating compliance with the ADA and similar state and local laws
- Where needed for workers' compensation or insurance purposes (for example, to process a claim)
Q: May employers tell employees who ask why their co-worker is allowed to do something that generally is not permitted (such as work at home or take periodic rest breaks) that she is receiving a reasonable accommodation?
A: No. Telling co-workers that an employee is receiving a reasonable accommodation amounts to a disclosure that the employee has a disability. Rather than disclosing that the employee is receiving a reasonable accommodation, employers should focus on the importance of maintaining the privacy of all employees and emphasize that their policy is to refrain from discussing with co-workers the work situation of any employee. Employers may be able to avoid many of these kinds of questions by training all employees on the requirements of equal employment laws, including the ADA.
Q: If an employee has lost a lot of weight or appears fatigued, may employers explain to co-workers that the employee has cancer?
A: No. Although the employee's co-workers and others in the workplace may be concerned about the employee's health, employers may not reveal that the employee has cancer. An employee, however, may voluntarily choose to tell her co-workers and others that she has cancer and about her treatment. However, even when an employee voluntarily discloses that she has cancer, employers must keep this information confidential, consistent with the ADA. Employers also may not explain to other employees why an employee with cancer has been absent from work if the absence is related to his cancer or another disability.
Your Work Stride oncology nurse navigators at Johns Hopkins can answer your questions about the ADA and your other employee rights. You can reach them at email@example.com or 844-446-6229, or visit the website workstride.org/jh.