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.