According to 2023 Large Employers’ Health Care Strategy and Plan Design Survey, a report published by the nonprofit Business Group on Health, the top three conditions fueling health care costs are cardiovascular disease, cancer, and musculoskeletal conditions. However, likely due to pandemic-related delays in care, 13 percent of employers said they have seen more late-stage cancers and another 44 percent anticipate seeing such an increase in the future. The COVID-19 pandemic put a pause on many previously routine aspects of our lives and, for some people, that included obtaining preventive medical care. Limited in-person services, lockdowns, and fear of contracting the virus resulted in sharp decreases in preventive health screenings, including those for cancer. These delays have resulted in the disease being more advanced at the time of detection.
The Role of Employers
When an employee colleague is diagnosed with cancer, confidentiality and flexibility are key. The Supervisor and employee should mutually agree on a plan for how work will get done rather than on the person’s medical condition. Employees with cancer face several challenges in the workplace, including whether to disclose their diagnosis to colleagues, treatment side effects, and the fear of being treated differently. Individuals and their families must also face the reality of the cost of care. In 2019, the national patient economic burden associated with cancer was $21 billion, according to a report published in the Journal of the National Cancer Institute.
An employer should not assume a particular cancer diagnosis means people with cancer do not want to work or are too ill to work. Cancer and Careers research indicates that about 7 in 10 people who have been diagnosed with cancer prefer to continue working during treatment, not only due to maintenance of necessities like continuity of income and insurance, but also to maintain feelings of normalcy and community. Employees with cancer suddenly find themselves trying to navigate the health care system, compromises in their work lives, and upheavals in their personal lives all at the same time. Employers can help ease the stress of an employee diagnosed with cancer by:
- Allowing a flexible work schedule to accommodate doctor’s appointments
- Encouraging time off when able
- Checking in with the employee
- Creating a safe environment for the employee to be honest with their teams and managers about what they need
- Reviewing the resources available to them through their benefits packages which can include sick leave, paid time off, short-term disability, and mental health support.
Cancer in the Workplace and the Americans with Disabilities Act (ADA)
The U.S. Equal Employment Opportunity Commission provides guidance on the applicability of the ADA to job applicants and employees who have or had cancer. Despite significant gains in cancer survival rates, people with cancer still experience barriers to equal job opportunities. Even when the 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.
The Americans with Disabilities Act (ADA), which was amended by the ADA Amendments Act of 2008 (“Amendments Act” or “ADAAA”), is a federal law that prohibits discrimination against qualified individuals with disabilities. Individuals with disabilities include those who have impairments that substantially limit a major life activity, have a record (or history) of a substantially limiting impairment, or are regarded as having a disability.
- An individual who currently has cancer, or has cancer that is in remission, is generally found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of normal cell growth or would be so limited if cancer currently in remission was to recur
- An individual with a history of cancer will be covered under the second part of the definition of disability because they have a record of an impairment that substantially limited a major life activity in the past
- An individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of cancer or because the employer believes the individual has cancer.
Title I of the ADA limits an employer’s ability to ask questions related to cancer and other disabilities and to conduct medical examinations at three stages: pre-offer, post-offer, and during employment. The following Q & A’s cover most of the circumstances related to what an employer can and cannot do with respect to cancer:
- May an employer ask a job applicant whether he or she has or had cancer or about the treatment related to cancer prior to making a job offer?
- No. An employer may not ask questions about an applicant’s medical condition or require an applicant to have a medical examination before it makes a conditional job offer.
- This means that an employer cannot legally ask an applicant questions such as:
- whether he/she has or ever had cancer.
- whether he/she is undergoing chemotherapy.
- whether he/she is taking medication used to treat or control cancer or has done so in the past.
- whether he/she ever has taken leave for surgery or medical treatment.
- how much sick leave she has taken in the past year.
An employer may ask questions pertaining to the ability of the applicant to perform the legitimate requirements of the position, such as:
- whether the applicant can lift to 50 pounds for a warehouse worker.
- Does the ADA require an applicant to disclose that the applicant has or had cancer or some other disability before accepting a job offer?
- No. The ADA does not require applicants to voluntarily disclose that they have or had cancer or another disability until such time as they need a reasonable accommodation. If an accommodation is required for the application process, then a disclosure will be required, but it must be initiated by the applicant.
- A person with cancer, however, may request an accommodation after becoming an employee even if the applicant she did not do so when applying for the job or after receiving the job offer.
- May an employer ask any follow-up questions if an applicant voluntarily reveals that he or she has or had cancer?
- No. An employer generally may not ask an applicant who has voluntarily disclosed that he has cancer any questions about the cancer, its treatment, or its prognosis.
- However, if an applicant voluntarily discloses that he or she has cancer and the employer reasonably believes that an accommodation will be required to perform the job, the employer may ask whether the applicant will need an accommodation.
- The employer must keep any information an applicant discloses about his or her medical condition confidential.
- When may an employer ask an employee if cancer, or some other medical condition, may be causing performance problems?
- Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to the medical condition.
- 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.
- May an employer require an employee on leave because of cancer to provide documentation or have a medical exam before allowing return to work?
- Yes. If the employer has a reasonable belief that the employee may be unable to perform the job or may pose a direct threat to himself or herself or others; however, the employer may obtain only the information needed to make an assessment of the employee’s present ability to safely perform the job.
- May an employer 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 the employee is receiving a reasonable accommodation?
- 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, the employer should focus on the importance of maintaining the privacy of all employees and emphasize that its policy is to refrain from discussing the work situation of any employee with co-workers.
- What other types of reasonable accommodations may employees with cancer need?
- leave for doctors’ appointments and/or to seek or recuperate from treatment.
- periodic breaks or a private area to rest or to take medication.
- modified work schedule or shift change.
- May an employer request documentation when an employee who has cancer requests a reasonable accommodation?
- Yes. An employer may request reasonable documentation where a disability or the need for reasonable accommodation is not known or obvious. An employer, however, is entitled only to documentation sufficient to establish that the employee has cancer and to explain why the specific accommodation is needed.
- Does an employer have to grant every request for a reasonable accommodation?
- No. An employer does not have to provide an accommodation if doing so will be an undue hardship. Undue hardship means that providing the reasonable accommodation will result in significant difficulty or expense. An employer also does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse violations of conduct rules that are job-related and consistent with business.
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C2 is a Professional Employer Organization (“PEO”) that provides outsourced HR services to businesses across a variety of service industries with a focus on federal government contractors. Utilizing our PEO model allows our clients to transfer the responsibilities and liability of payroll, benefits administration, employee onboarding, and employee relations to C2 and to focus their attention on satisfying their clients and growing their business. C2 blog posts are intended for educational and information purposes only. More information about C2’s PEO and other related HR services is available at www.c2essentials.com.