Cancer In The Workplace: Questions And Answers From The EEOC
On July 26, 2005 the EEOC issued a series of questions and answers addressing the ADA’s application to individuals in the workplace who have, or have had, cancer. The Q&A’s on Cancer address a wide range of issues including: when cancer is a disability under the ADA; whether and how employers may obtain, use and disclose medical information regarding individuals with cancer; types of reasonable accommodations employers may need to provide to individuals with cancer; and whether and when employers may restrict individuals with cancer from working due to safety concerns.
The EEOC takes several positions that might surprise employers. After the Supreme Court’s decision in Toyota Motor Manufacturing of Kentucky Inc., v. Williams, many courts and employers assumed that impairments must be long term or permanent to be ADA disabilities. The EEOC’s Cancer Q&A provides several examples of individuals with cancer who would be disabled under the ADA even though they are only limited in their ability to perform major life activities for a relatively short period.
According to the EEOC, a computer sales representative could be disabled under the ADA if, following a lumpectomy and radiation for aggressive breast cancer, she experienced extreme nausea and fatigue for six months. In the example, the EEOC assumed the individual continued to work during her treatment, but frequently came to worker later in the morning, took breaks when she experienced nausea, was too exhausted when she returned home to cook, shop, or do household chores, and had to rely almost exclusively on her husband and children to do these tasks.
Even when itself not a disability (such as when it is diagnosed and treated early), the EEOC explains that cancer may lead to other impairments that could be disabilities. For example, if an individual develops depression as a result of cancer, the treatment for the depression alone or for it and the cancer lasts more than several months, and the treatment substantially limits major life activities, such as interacting with others, sleeping, or eating, the depression would be a disability under the ADA.
Employers may not tell co-workers that an employee has cancer, or that the employee is receiving a reasonable accommodation, such as working at home or taking periodic breaks, because of cancer. Rather, employers should focus on the importance of maintaining the privacy of all employees and emphasize the policy to refrain from discussing the work situation of any employee with co-workers. Employers may be able to avoid many of these kinds of questions by training all employees on the requirements of EEO laws, including the ADA.
Accommodations that may be required by the ADA include: leave for doctor’s appointments and/or to seek or recuperate from treatment; periodic breaks or a private area to rest or take medication; adjustments to work schedules; permission to work at home; modification of office temperature; permission to use work telephones to call doctors; reallocation of non-essential job functions to other employees; reassignment to another vacant position. An employer is not required to reallocate essential job functions as a reasonable accommodation, but the EEOC notes that it may be mutually beneficial for an employer to do so, at least on a temporary basis.
An individual with cancer need not specifically request a “reasonable accommodation” to be entitled to one, as long as the employee tells the employer of the need for an adjustment or change at work because of cancer. A nurse, for example, could request reasonable accommodation by telling the employer that she is having difficulty working 12 hours a day because of cancer. Addressing “leave” as a potential reasonable accommodation, the EEOC states employers may not automatically deny requests for leave from employees with cancer because they cannot specify an exact date on which they will return to work. Employees with cancer may only be able to provide approximate dates of return (e.g., “in six to eight weeks,” “in about three months”). Return to work dates also might need to be postponed because of unforeseen medical developments. In these situations, employers have the right to require that employees provide periodic updates on their conditions and possible dates of return. After receiving these updates, employers may re-evaluate whether continued leave constitutes an undue hardship.