Workplace Accommodations During Cancer Treatment

Most workplace problems during cancer treatment fall under one of two federal laws.

The Americans with Disabilities Act, or ADA, is about changing how you work. The Family and Medical Leave Act, or FMLA, is about time away from work. They cover different employers, use different tests, and do not expire together.

You can use both. Many people do. But the paperwork is separate, and mixing them up costs people their protection.

Neither law pays you. For how job protection, income replacement and disability benefits fit together, see Cancer, Disability Assistance and Leave of Absence.

EEOC lays out three separate routes into ADA coverage.

If you have cancer now, or are in remission, you are substantially limited in normal cell growth. That is the direct route.

If you had cancer in the past, you have a record of an impairment that substantially limited a major life activity. That protection does not end when treatment does.

If an employer treats you as though you have cancer, you are covered under the "regarded as" route, whether or not the belief is accurate.

Before a job offer, an employer may not ask about a cancer diagnosis, treatment, or medical history. Questions must stay on your ability to do the job. You do not have to disclose cancer, unless you need an accommodation for the application process itself.

If you mention cancer on your own, the employer generally still may not follow up. The exception is narrow. If the employer reasonably believes you will need an accommodation, it may ask what kind.

After a conditional job offer, the rules loosen. The employer may ask detailed health questions and require a medical exam, as long as it does the same for everyone entering that job.

Once you are employed, disability-related questions are allowed only in specific situations. EEOC names three. One is an actual performance problem the employer believes a medical condition is causing. One is checking on sick leave use. One is judging whether you can return to work after leave.

Nothing, essentially.

EEOC requires employers to keep medical information confidential. The listed exceptions are narrow. Supervisors may be told about a work restriction. First aid and safety staff may be told if emergency treatment might be needed. Government officials investigating ADA compliance may be told. Insurance and workers' compensation uses are also allowed.

An employer may not tell your coworkers that you are receiving an accommodation. It may not explain the reason for your absences. If your manager announces your diagnosis in a team meeting, that is a violation, not a kindness.

EEOC lists these examples for cancer specifically:

• a flexible or modified work schedule.
• leave for treatment, recovery, or medical appointments.
• periodic breaks during the day.
• working from home.
• changes to workplace temperature.
• reassigning tasks that are not essential to the job.

Two features of this list matter more than the items.

First, the duty is ongoing. EEOC states that a person with cancer may need more than one accommodation over time. Needs during chemotherapy are not needs during radiation, and neither matches needs six months after.

Second, there are no magic words. Any statement that you need an adjustment because of your cancer is a request. You do not have to say "ADA" or "reasonable accommodation." You also do not have to name an exact return date. EEOC accepts an approximate time frame, because cancer treatment is unpredictable.

An employer may ask for documentation establishing that you have cancer and that you need the accommodation. It may not demand your entire medical record.

Knowing the limits protects you from arguing the wrong point.

An employer may refuse a change that causes undue hardship. That phrase means major difficulty or expense. It does not have to remove an essential function of your job. It does not have to lower production standards, or excuse violations of conduct rules applied to everyone.

If more than one accommodation would work, your preference gets consideration, but the employer may choose among effective options.

An employer can bar you on safety grounds only by showing a direct threat. That means a large risk of serious harm that no accommodation can reduce. EEOC requires hard medical evidence. Four things get weighed: how long the harm would last, how bad it would be, how likely it is, and how soon it would come. Fear and stereotype do not qualify.

FMLA is arithmetic, not judgment. Three tests, all of which you must meet:

• You have worked for the employer for at least 12 months.
• You worked at least 1,250 hours in the 12 months before leave.
• Your worksite has at least 50 employees within 75 miles.

The employer must be covered too. That means a private employer with 50 or more workers in 20 or more workweeks this year or last. All public agencies count, whatever their size. So do local education agencies.

If you qualify, you get up to 12 workweeks of leave in a year. Your group health coverage continues on the same terms as if you had kept working. On return, you get the same or a virtually identical position.

Give notice as soon as possible and practical. If your employer requests medical certification, you have 15 calendar days to provide it.

FMLA requires a "serious health condition," which has a technical definition. Cancer treatment usually qualifies through one of these routes:

• Inpatient care, meaning an overnight stay in a hospital, hospice, or residential medical facility, plus any related incapacity or follow-up treatment.
• Incapacity of more than three consecutive full calendar days, plus treatment by a provider within 7 days of the first day, and either a prescribed course of treatment or a second visit within 30 days.
• A chronic condition requiring provider visits at least twice a year, with recurring periods of incapacity.
• Multiple treatments by a provider for restorative surgery, or for a condition that would likely cause incapacity of more than three consecutive days if left untreated.

That last route is the one written for chemotherapy and radiation. Each infusion day is covered even if you feel able to work the next morning.

FMLA leave can be taken in blocks, or as a reduced schedule, when medically necessary. Intermittent leave is often the better fit. Twelve workweeks used as scattered days stretches much further than twelve weeks taken at once.

These are hard cutoffs. Missing them ends the claim.

• A discrimination charge must reach EEOC within 180 days of the act. That extends to 300 days where a state or local fair employment agency has jurisdiction.
• A federal employee must contact an EEO Counselor within 45 days.

EEOC may offer mediation before a formal investigation. Retaliation is illegal on its own. That covers punishing you for asking for an accommodation, and for speaking up about bias.

• https://www.eeoc.gov/laws/guidance/cancer-workplace-and-ada
• https://www.dol.gov/agencies/whd/fact-sheets/28-fmla
• https://www.dol.gov/agencies/whd/fact-sheets/28p-taking-leave-when-you-or-family-has-health-condition