The Americans with Disabilities Act (ADA) is a federal law that gives civil rights protections to individuals with disabilities. Notably, the ADA guarantees disabled persons equal opportunity in employment, public accommodations, transportation, and housing.
Cancer is a disability under the ADA when it "substantially limits" one or more of a person's "major life activities." Most courts are fairly open minded about what constitutes a major life activity. It can be something as extreme as being unable to walk or have children, to something as subtle as being unable to do chores around the house, or even digest food.
Even when the cancer itself does not substantially limit any major life activity, it can lead to the occurrence of other impairments that may be disabilities. Depression is often a side effect of having cancer treatments, and if it is severe enough to interrupt normal life, then it is likely protected by the ADA.
Can an Employer Ask If I've Had Cancer or Am Being Treated for It?
No. An exception may be where the employer has a direct reason to believe that a condition is posing a direct threat to safety. This means that an employer cannot ask questions whether an employee:
- Has or have ever had cancer
- Is undergoing chemotherapy or radiation
- Has ever taken leave for surgery or medical treatment
- How much sick leave they have taken in the past year
However, an employer may ask how an employee is feeling if they appear to be sick, or may ask questions pertaining to ones ability to perform duties, like whether an employee is:
- Able to lift certain amounts of weight
- Able to travel
- Able to work certain shifts.
It is worth mentioning that if an employee requests a "reasonable accommodation" for work, they will need to disclose reasons why. However, it is still illegal for an employer to act against an employee because of this information, as this would be disease discrimination.
What Can an Employer Ask about an Employee's Cancer?
According to the EEOC, an employer may ask an employee with cancer only:
- For information, including reasonable documentation, explaining the need for a reasonable accommodation requested because of cancer
- For medical information that is part of a voluntary wellness program
- To justify the use of sick leave by providing a doctor's note or other explanation, as long as all employees are treated in this manner
- For periodic updates on his condition if the employee has not provided an exact or fairly specific date of return
Do Family Members of People with Disabilities Have Any Employment Protection?
Discrimination against the significant others and family members of people with cancer is also illegal. The ADA protects persons who are discriminated against because they have a close relationship with someone that has a disability. Therefore, the ADA will protect anyone who is denied a job or fired because anyone close to them has cancer.
How Can an Attorney Help?
If your employer has taken some negative action against you because of your cancer or history of cancer, consulting with an employment lawyer or civil rights attorney would be wise. An attorney can explain what rights you have in detail, tell you about what kind of remedies you can get from your employer. Time is limited on these kinds of cases, so it's important that you consult an attorney as soon after the incident as possible.