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October 2002 Volume 5, Issue 3:
Legal Assistance for the Cancer Patient
By Barbara Ullman Schwerin, Esq.
10.30.02

The Cancer Legal Resource Center (CLRC), a joint program of Loyola Law School and the Western Law Center for Disability Rights, was founded in 1997 and provides information and education on all types of cancer-related legal issues for persons with cancer, their family and friends, caregivers and others impacted by the disease. The CLRC’s founders recognized that, while there was medical and psycho-social support for people with cancer, there was no place for them to go with questions about employment, insurance, government benefits, estate planning issues and other legal issues that needed to be addressed.

The CLRC has assisted more than 17,000 people since its inception. Many callers are helped through the CLRC’s telephone assistance line, staffed primarily by Loyola Law School students under the supervision of CLRC’s legal staff. Additionally, the CLRC conducts 70-80 workshops annually in the cancer community, including cancer support groups, in service training for health care professionals, conferences, health fairs and other activities in the cancer community. The CLRC also has a volunteer panel of attorneys and other professionals who provide more in-depth counsel when needed. The CLRC is primarily California based. However, a significant percentage of its calls come from outside of California, with the CLRC finding local resources for these callers. The CLRC’s services are free.

While the CLRC receives calls in many areas, the following will be a brief overview of the employment laws affecting persons with cancer.

The Americans with Disabilities Act

In 1990, Congress passed the Americans with Disabilities Act (ADA). The ADA is a wide-ranging law, prohibiting discrimination in all areas of the employment process. It was designed to level the playing field in the employment arena – so that people would not be denied jobs, or the benefits of jobs, simply because they had disabilities.

The ADA applies to private employers with 15 or more employees. It also applies to employment agencies, labor organizations, and local and state governments. The ADA provides protection to a “qualified individual with a disability.” An individual must be both disabled and qualified.

An individual with a disability under the ADA is an individual with a physical or mental impairment that substantially limits a major life activity. The major life activity can be, among other things, caring for oneself, walking, talking, seeing, breathing, or working. A person may also have a disability if she has a record of an impairment or is regarded as having an impairment. The impairment that substantially impacts a major life function must be severe, not temporary, and must produce a permanent or long-term impact.

In determining whether an impairment is substantially limiting, the impairment must be looked at in its corrected, or mitigated, state. Therefore, one must look at the employee’s present condition, including whether the employee has already had surgery and where the employee is in his/her treatment program. One must look at the medications that may control the person’s impairment, and also look at the side effects of the treatment, including the side effects of radiation and chemotherapy.

If the person’s cancer is completely or substantially controlled through surgery, radiation and chemotherapy, the person may not have a qualifying disability under the ADA because they cannot show a substantial impact on a major life function. However, the person may be protected under one of the other two prongs of the ADA; namely, that they have a history of an impairment or are treated as having an impairment.

To be entitled to protection, the employee must also be a “qualified individual.” This means the employee must be able to perform the essential functions of the job with or without a reasonable accommodation. Some examples of reasonable accommodations include a flexible schedule, reassignment to a vacant position, a light duty position, or possibly an extended period of leave time. Each situation is intended to be assessed on an individualized basis, including whether the reasonable accommodation would be an undue hardship for the employer.

The ADA does not specifically provide a list of reasonable accommodations – it is meant to be a dialogue between the employee and employer and based upon the specific type of job and company involved. Additionally, accommodations are only required for the known disabilities of the individual – the employer must first be aware that an employee is seeking a reasonable accommodation under the ADA. It is also generally up to the individual needing the accommodation to make suggestions to the employer about the type of reasonable accommodations the employee is requesting.

The ADA can also provide protection for a person looking for a new job. If a prospective employee is applying for a new job, she does not need to disclose her medical condition unless she needs a reasonable accommodation for the application or interview process. An applicant need not reveal her disability when she applies even if she believes she will need an accommodation on the job. If the person has a visible impairment, the prospective employer can ask the potential employee how they would perform the job function, and ask them to demonstrate.

If a person receives a conditional job offer based upon undergoing a medical examination, such an examination must be required of all employees in the same job category. The offer cannot be rescinded unless the medical examination indicates that the person cannot perform the essential functions of the job with or without a reasonable accommodation or that the person would pose a direct threat to himself or others. Finally, any requests for reasonable accommodations under the ADA are to be kept confidential. They should be kept in a separate, locked file that is kept separate and apart from a person’s personnel file.

What Other Laws May Apply in the Workplace?

There are other laws that may provide protections to employees in the workplace. The ADA can work hand in hand with another law, the Family and Medical Leave Act (FMLA). The FMLA provides for a person to take up to 12 weeks of unpaid medical leave to care for a seriously ill spouse, parent, or child. It also allows for up to 12 weeks of unpaid leave for the serious medical condition of the employee. Although unpaid, this is job-protected leave, which means the employee returns to the same or an equivalent position. This law also requires the employer to keep an employee’s benefits intact.

The FMLA applies to employers with 50 or more employees. Covered employees must have been employed at least a year and have worked a minimum of 1,250 hours in that year. Sometimes, a person will need more than the 12 weeks of unpaid leave provided by the FMLA. In that case, a person may be able to take an extended period of leave time as a reasonable accommodation under the ADA after exhausting the 12 weeks of FMLA leave. Additionally, there may be state laws that provide protections equal to or greater than the ADA or FMLA.

Note: For assistance, please contact the CLRC:

Cancer Legal Resource Center
919 S. Albany Street
Los Angeles, CA 90015
Tel: (213) 736-1455
Fax: (213) 736-1428
TDD: (213) 736-8310 [TDD]
clrc@majordomo.lls.edu
www.wlcdr.org

Barbara Ullman Schwerin, Esq. is Director of the Cancer Legal Resource Center and Adjunct Professor of Law at Loyola Law School Los Angeles, California.


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