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Can I be fired or refused a job because of my cancer diagnosis?

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Updated June 24, 2010

Question: Can I be fired or refused a job because of my cancer diagnosis?
A diagnosis of breast cancer threatens more than your health - it can impact your ability to work. You may feel vulnerable to employment discrimination, and fear losing your job because of cancer. Worries pile up - will you lose your income as well as your health insurance? Do you have any legal recourse against discrimination in your workplace? Fortunately, there are laws in place that provide for your situation. You can't be fired for having breast cancer.
Answer:

Your Job Is Legally Protected

Job discrimination based on disabilities as defined by the Americans with Disabilities Act of 1990 (ADA) is not legal. Because of changes to the ADA in 2008, people with cancer will enjoy equal protection of their civil rights.

A diagnosis of cancer is itself not enough to qualify you for protection under the ADA - you must have a substantially limited major life activity as a result of a medical condition, side effects of the condition, or treatment side effects. For many breast cancer patients, the side effects of surgery, chemotherapy and radiation as well as having abnormal cell growth are enough to qualify you for ADA. After treatment ends, if you are in remission and able to work, you are still protected under federal law.

Protection For Many Employees

The ADA is a federal law that protects people who work for a company with 15 or more employees. That holds true even if the company or employer is a private business, a branch of state or local government, an employment agency, a union, or a joint committee of labor and management. If you work for the federal government in the U.S., the Equal Employment Opportunity Commission (EEOC) instead of the ADA law protects your rights. For those of us that are self-employed or work for a business with fewer than 15 employees, state laws may cover your rights, which vary from state to state.

Employer Accommodations Under ADA

You have the right to keep working during treatment, and ask for reasonable accommodations from your employer. Before asking for accommodations, be sure you are still able to do the essential functions of your job. If you can fulfill the core functions of your job, then you'll need to speak with your supervisor about how treatment may affect your job performance. Your supervisor does not have to offer accommodations for you, but you must ask for those. Employers do not have to provide every accommodation that is requested. Be willing to make suggestions and to negotiate. Here are some examples of reasonable accommodations:

  • Adjusting your work schedule
  • Allowing time for appointments, treatments and recovery
  • Temporarily delegating some of your tasks to another employee
  • Working from home or telecommuting
  • Moving you to a vacant position that you can more easily fill

Looking For Employment After Cancer

A prospective employer is not legally allowed to ask you about any existing disabilities you may have. Interviewers cannot ask you if you've had cancer, nor any details of your illness or treatment. Hiring should be based on your ability to do what the job requires, regardless of any other condition beyond your control. If you must pass a medical exam as a requirement of employment, your cancer history may be revealed, but medical files are confidential and must be kept apart from your personnel files. You don't have to tell a new employer about a cancer diagnosis unless you will also be asking for reasonable accommodations related to that condition. In addition, the employer must provide you with the same health insurance coverage that it offers to all of its employees.

Recourse For Employment Discrimination

If you feel that you've had some workplace discrimination, you can file a complaint with an Equal Employment Opportunity Commission (EEOC) field office located near you. But don't wait too long to file your complaint. The EEOC and most states require that a discrimination complaint be filed within 180 days of the time such an incident occurs. That's roughly six months to file a complaint, time to think about whether or not the effort is worth it to you. If your state or local government also covers this kind of discrimination, your filing deadline goes up to 300 days. Keep documentation for the discrimination, if at all possible.

Take-Home Message About Employment Discrimination And Cancer

It is not legal to fire someone on the basis of a cancer diagnosis. Federal and state laws protect your job during and after cancer treatment. If you are able to do the job, you can keep working through treatment, and ask for reasonable accommodations. When looking for a new job, your cancer diagnosis should be available on a "need to know" basis only. Your new employer must provide equal access to health insurance coverage. Keep a paper trail - you may need it for Sick Leave and Family Medical Leave (FMLA) anyway. If you think you have been discriminated against because of your cancer, take timely action.

Sources:

Americans with Disabilities Act. American Cancer Society. Last Revised: 04/10/2009.

Questions and Answers About Cancer in the Workplace and the Americans with Disabilities Act (ADA). The U.S. Equal Employment Opportunity Commission. Last Revised: August 03, 2005.

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