Hope you all had a wonderful Thanksgiving weekend.
Last week, I shared my family’s personal story about how cancer has impacted us. With that in mind, I thought I would share a few tips for employers. Even if you don’t presently have an issue with an employee, it’s worth familiarizing yourself with some of the rules of the road.
First off, to no one’s surprise, cancer is very likely a “disability” under the ADA. Even if an employee is in remission from cancer, they can still fall within the statute’s protections as having a “record of” a disability (cancer).
It is so common, that the EEOC has released set of questions and answers to address cancer-related employment issues. It’s a good starting point for employers when facing these issues.
The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, his actual performance is the best measure of ability to do the job.
One question that the EEOC addresses, for example, is “When may an employer ask an employee if cancer, or some other medical condition, may be causing her performance problems?”
The EEOC does not bar such questions in their entirety. Indeed:
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 a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as extreme fatigue or irritability, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. 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.
Another issue that comes up frequently is the use of reasonable accommodations (or “adjustments or modifications” as the EEOC tries to explain in plain English). While “Not all employees with cancer will need an accommodation or require the same accommodations”, the EEOC notes that most of the accommodations a person with cancer might need will involve little or no cost.”
Importantly, “an employer must provide a reasonable accommodation that is needed because of the limitations caused by the cancer itself, the side effects of medication or treatment for the cancer, or both.”
Beyond the ADA, however, there are other laws that may be implicated including the Family and Medical Leave Act (or the state law equivalent.) In many instances, an employee’s cancer will fall within the “serious health condition” and be eligible for protected leave.
Employers who have employees with cancer should understand the legal issues in play. But beyond that, empathy for the employees is something that ought not to be forgotten. While I won’t implicate the Golden Rule, an employee who has been recently diagnosed with cancer is going through a life-disrupting change.
That does not mean you cannot still expect some performance from the employee. But it does mean that you may have do something more than simply watching their performance and absences.
With the advances in the treatment in cancer, such a diagnosis may not be as grim a prognosis as it once was. And your employee will thank you in the long run.