Concurrent with the 15th anniversary of the signing of the Americans with Disabilities Act ("ADA"), the U.S. Equal Employment Opportunity Commission ("EEOC") recently has issued guidance concerning the workplace rights of applicants and employees with cancer. Although the EEOC's guidance is not law, the EEOC is the enforcement agency for federal discrimination laws, including the ADA, and is often looked to as guidance by the courts in employment cases. This recent guidance underscores clearly the EEOC's concern about how employers respond to this disease, and may indicate that the EEOC will increase its enforcement efforts.
Cancer, The Workplace, The Individual Employee And The ADA
According to the American Cancer Society, 40 percent of the more than one million Americans diagnosed with some form of cancer each year are working-age adults. In fact, nearly 10 million Americans have a history of having cancer.
Medical literature indicates that common side effects and symptoms of cancer and its treatment are: fatigue; nutrition problems; depression; pain; nausea; vomiting; hair loss; memory loss; and respiratory problems. However, the guidance emphasizes that employers must be aware that cancer can affect persons differently, depending on many factors, such as: age; general level of health of the person; stage of the disease; primary site of the cancer; and type of treatment the individual receives. Consequently, making assumptions based on a diagnosis only is problematic.
An individual with cancer does not always have a "disability" as defined under the ADA. The guidance provides that cancer is a disability under the ADA only when it, or its side effects:
last for more than several months and "substantially limit(s) one or more of a person's major life activities," such as breathing, sleeping, eating or caring for oneself;
were "substantially limiting some time in the past," such as a person who is unable to care for himself for six months because his treatment caused a weakened immune system;
cause the individual to suffer other impairments that are disabilities, such as the development of depression; and/or
cause an employer to treat the person as if he has a disability.
The Do's And Don'ts Of Information Gathering And Dissemination
The guidance also provides examples of the types of medical information that may be requested by an employer from an employee with cancer, and lists questions that employers are and not permitted to ask of job applicants and employees with cancer.
Employers may request the following types of medical information from employees with cancer:
Documentation that explains the need for a reasonable accommodation;
A doctor's note, or similar type of documentation, explaining that the employee can perform her job and do so safely, only if the employer has reason to believe that the employee may not be able to perform her job, or poses a direct threat to herself or others;
Information in connection with an employer's "voluntary wellness program" (as defined by the ADA), such as a smoking cessation program;
A doctor's note to justify sick leave, but only if all employees who use sick leave also are required to produce a doctor's note, and the information requested does not exceed that which is necessary to verify that the sick leave is being used appropriately; and
Regular updates from an employee regarding his condition, if he did not provide a definite return date.
Employers also may contact an employee on an extended leave to check on his/her progress or to express concern for an employee's health.
Examples of questions that employers may not ask job applicants are:
Do you have cancer?
Do you have a history of cancer?
Have you had treatment or surgery for cancer?
Are you taking medication to treat or control cancer?
Have you taken leave for cancer?
How much sick leave did you take last year?
Examples of questions that employers may ask job applicants are:
Can you perform the essential functions of the job, ( i.e., can the applicant lift a required weight, travel out of town, or work different shifts?)
If the applicant volunteers that she has, or has had cancer, and the employer has a reasonable belief that the applicant may need an accommodation, the employer may ask:
Will you need a reasonable accommodation? If so, what type of accommodation will you need?
If the employer learns after making a job offer that an applicant has or has had cancer, the employer may ask:
Are you currently undergoing treatment that could interfere with your ability to do the job?
Are you currently experiencing any side effects that could interfere with your ability to do the job?
Will you need a reasonable accommodation? If so, what type of accommodation will you need?
Examples of questions that employers may not ask employees are:
Do you have cancer?
Has your cancer returned?
The following questions may be asked of employees only in situations where the employer observes performance problems and 1) knows that the employee has cancer; 2) has observed symptoms of cancer, such as fatigue, or difficulty in concentration or memory; or 3) has received trustworthy information from a co-worker or family member that the employee has cancer.
Is a medical condition (or cancer, if known) causing your performance problems?
Is treatment for a medical condition (or cancer if known) causing your performance problems?
How long do you expect the treatments to continue?
Will you need a reasonable accommodation? If so, what type of accommodation will you need?
It is critical that employers use extreme caution when informing employees about another employee's cancer. The following illustrates when and to whom an employer may provide information:
If it is necessary to provide a reasonable accommodation to an employee with cancer, or to meet certain work restrictions, an employer may tell the employee's supervisors or managers.
If, while at work, an employee will need emergency or medical treatment, an employer may tell the appropriate personnel in charge of first aid, medical or safety.
If an employer is subject to an investigation concerning compliance with the ADA, or its state or local law counterpart, the employer may tell investigators.
Except for in the above circumstances, an employer may never disclose to others that an employee has cancer. This prohibition includes not explaining:
The reasonable accommodation granted to an employee with cancer;
Any symptoms or the physical appearance of an employee with cancer; and/or
Why an employee with cancer is absent from work.
Reasonable Accommodations
With respect to granting a reasonable accommodation for an employee with cancer, employers must consider the following:
An employee does not need to use any "magic words" to tell an employer that she needs a reasonable accommodation. An employee may state merely something to the effect that she needs an adjustment or change, or that she is having trouble performing.
A family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an employee with cancer.
An employee with cancer may need more than one type of reasonable accommodation, at different times or at the same time, based on factors such as the type of cancer, type of treatment, stage of the disease, and symptoms arising as a result of cancer.
An employee who requests an accommodation such as intermittent leave to attend a doctor's appointment, or a flexible or reduced work schedule, also may be entitled to leave under the Family Medical Leave Act, or its state law counterpart.
An employer may not deny leave as a reasonable accommodation on the basis that the employee is unable to provide a definite date of return.
An employer may request medical documentation where the need for a reasonable accommodation is not apparent to the employer.
An employer does not have to provide a reasonable accommodation to an employee if it would cause the employer an "undue hardship," meaning the accommodation would result in "significant difficulty or expense."
An employer does not have to provide the reasonable accommodation that the employee desires, but may select from among possible reasonable accommodations, providing that the chosen accommodation is effective.
An employer does not have to reassign essential functions of an employee's position as an accommodation, but may do so if it is a temporary accommodation.
Reducing Employer Liability
Finally, in order to reduce the risk of liability under the ADA, employers should take the following steps:
Ensure its policies and handbook include disability discrimination and harassment as prohibited conduct;
Promptly and thoroughly investigate complaints of disability discrimination and/or harassment;
The ADA prohibits retaliation against employees who either complain of discrimination or harassment, or participate in an investigation of such complaints. Employers should advise all employees that they will not suffer any retaliation as a result of a complaint, or participation in an investigation;
Train the workforce on its policies prohibiting discrimination and harassment on the basis of an employee's disability, or any other protected characteristic;
Train supervisors and managers on maintaining confidentiality of medical information received about an applicant's or employee's cancer; and
Train supervisors and managers on how to engage in an "interactive process" with an employee with cancer to determine if the employee's condition is causing a substantial limitation of a major life activity and, if so, whether a reasonable accommodation is needed to allow the employee to perform the essential functions of her position. In the alternative, train them to refer such matters to the individual in the workplace designated to handle such matters.
Published November 1, 2005.
