The federal Americans With Disabilities Act (ADA) prohibits discrimination in employment. An individual has a “disability” under the ADA if that disability substantially limits one or more major activities of daily life. Cancer, to the extent it substantially limits such activities, is a disability under the ADA.
When is Cancer a Disability Under the ADA?
If cancer “substantially limits” one or more of a person’s “major life activities”, then it is a disability under the ADA. An impairment is “substantially limiting” when an individual is substantially limited in performing a major life activity as compared to most people.
“Major life activities” include major bodily functions. Major life activities also include caring for oneself, seeing, hearing, eating, sleeping, walking, standing, and sitting. Other major life activities include reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, and working.
Under the ADA, cancer need not directly limit a major life activity. If the effects of cancer or treatment for cancer limit major activities, cancer will be protected as an ADA disability. For example, if cancer causes an individual to suffer depression, the cancer is considered a disability. This is so even if the disease itself does not substantially limit anything.
Likewise, even if cancer itself does not substantially limit a patient’s major life activities, treatment for cancer (such as chemotherapy) may do so. Treatment may, for example, cause fatigue that inhibits alertness and thinking. Thinking is a major life activity. In this case, then, cancer meets the definition of “substantially limiting.”
Can My Employer Ask If I Have Cancer or if I Am Receiving Cancer Treatment?
Under the ADA, employers may not discriminate against qualified, dsabled individuals. Employers discriminate if they deliberately ask questions that are likely to make an employee respond by revealing they have a disability. Therefore, an employer may not directly ask an employee if they have cancer. An employer may not ask an employee or a question designed to ultimately reveal the presence of a disability. This means, for example, that the employer may not ask “indirect” questions, such as “Are you undergoing chemotherapy?”
An employer can ask questions related to an applicant’s ability to perform a job. For example, a job may require that an applicant be able to lift heavy objects, stand for extended periods, or travel. For this job, the employer may ask an employee (disabled or not) if that person can do these things.
What are Reasonable Accommodations?
An employer is not required to hire, or to keep, someone who cannot perform the essential functions of their position. Essential functions are those job duties an employee must be able to perform for a particular role. For example, a job may require that an employee use a computer. The essential functions of this job include computer operation, data entry and data retrieval. If an employee can perform these functions, they are “qualified” to perform the job. If an employee is not qualified to perform these functions, the employer is not qualified for the job. Therefore, the employer need not hire or retain the employee. This is so whether the employee is disabled or not.
An employee with cancer who is qualified, may ask for a “reasonable accommodation” to enable that employee to perform those functions. Reasonable accommodations are changes or modifications to the workplace. Reasonable accommodations are also changes to the way a task is performed.
Take the example of an employee whose disability is cancer. The employee must perform their job, the essential functions of which require computer knowledge, by standing for a significant period. (The employer has a standing-desk policy.) The standing is not necessary to perform the essential job functions. However, the employee, who is receiving chemotherapy, may have difficulty standing for extended periods because the chemotherapy has limited their mobility. Under this situation, the employee may ask for a reasonable accommodation, in the form of a chair.
What May an Employer Ask for When Deciding to Grant a Reasonable Accommodation?
When an employee asks for a reasonable accommodation, the employer may ask for certain information to accommodate the employee. The employer may ask for documentation from the employee’s physician, explaining the need for the accommodation. If an employee requests sick leave as a form of accommodation, the employer may ask the employee to provide a doctor’s note.
The employer may do so, provided the employer requires all employees requesting sick leave to provide the note. Employers may not ask for more information than is necessary, to fairly evaluate the employee’s need for an accommodation. Nor may employers ask for information that is irrelevant to the issue of whether a particular accommodation is reasonable.
Do I Need the Help of a Lawyer for Cancer Discrimination?
If you believe your employer has discriminated against you on the basis of cancer, you should contact an employment lawyer. An experienced employment lawyer near you can review the facts of your case and advise you how to proceed. The attorney can also represent you in hearings and court proceedings.