Employment Accommodations for Employees With Cancer

February 16, 2011 (Press-News.org) Oftentimes individuals with mental or physical disabilities want to work despite their limitations. Federal laws seek to empower those who wish to work and prevent employers from discriminating against individuals with disabilities or who are perceived to have disabilities. California's Fair Employment and Housing Act (FEHA) provides even greater levels of protection from discrimination.

Federal and California laws go further than simply preventing discrimination; they also require employers to make certain accommodations to allow individuals with disabilities to work. Under the Americans with Disabilities Act of 1990 (ADA) and the updated ADA Amendments Act passed in 2008, employers are required to provide reasonable accommodations to employees with disabilities. In many cases, this includes employees facing serious illnesses such as cancer.

When is cancer a disability under the ADA Amendments Act?

The ADA Amendments Act emphasizes that employers should define the term disability broadly, in the interest of providing coverage to the maximum extent possible under the law. Before the enactment of the ADA Amendments Act, a series of Supreme Court decisions and EEOC regulations had interpreted the ADA in a narrow manner -- the ADA Amendments Act makes it clear that this is not the intention of lawmakers.

As with the ADA before it, cancer is a disability when the disease substantially limits one or more major life activities. Additionally, cancer is a disability under the ADA if an employer treats an employee as if it substantially limits major life activities, regardless of whether it actually does.

However, the ADA Amendments Act expands the definition of major life activities to include both day-to-day activities (like walking) and major bodily functions (like normal cell growth). Additionally, the Amendments Act clarifies that impairments that are episodic or in remission are considered disabilities, if they substantially limit one or more major life activities when active.

It is important to note that California's Fair Employment and Housing Act is more comprehensive even than the amended ADA. Notably, under California's FEHA, impairments need only "limit" one or more major life activities.

If an employee is regarded as disabled, even if he or she is not disabled within the meaning of the law, the employee is afforded the protections of the anti-discrimination statutes. Moreover, under the FEHA, employees with diagnosed cancer, or regarded as having diagnosed cancer as a medical condition (even if not actually diagnosed as such), are protected from discrimination.

When are employers expected to provide accommodations?

Employers are required to accommodate employees when doing so does not result in "undue hardship." If providing an accommodation would cause the employer an undue burden (e.g., would be unduly costly), the employer is not required to make the accommodation. However, if there is a less expensive or less difficult means of accommodating the employee that would not be unduly burdensome, the employer must oblige.

It is important to note that the accommodations requirement is not a one-time event. An employer is required to provide reasonable accommodations on an ongoing basis, and these accommodations may change with time for a cancer patient, depending on the phase of treatment.

What forms of accommodation might a person with cancer need?

Much like any other illness or disability, the accommodations required for cancer are likely to vary from one person to the next. However, some individuals with cancer may require flexible work hours to allow for doctors' appointments or periodic breaks to rest.

An employee may require the ability to work from home, and depending on the particular circumstances of the position, this might be a reasonable accommodation. In some cases, an employee with cancer may need certain tasks to be reassigned to other employees, or may need a reassignment to another position if such a position is available.

How should an employee request accommodations?

There is no prescribed way to request an accommodation. Under California or federal law, there are no magic words or specific phrases. An employee need only communicate information sufficient for an employer to understand that an accommodation may be necessary in order for the employee to perform his job functions.

The employer is required to engage in an interactive dialogue with the employee in good faith to arrive at a reasonable accommodation. An employer does not have to offer accommodations that would create an undue hardship within the meaning of the law.

Nothing can make a battle with cancer easy, but those facing such battles should not have to worry battling their employers at the same time. If your employer has declined to offer accommodations, or if you simply want more information regarding federal or California accommodation requirements, speak with a knowledgeable employment law attorney.

Article provided by The Rubin Law Corporation
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