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5 Return-to-Work Considerations for Cancer Patients and Survivors during the Pandemic

by Vivienne Duncan, Esq. February 15, 2021

Vivienne Duncan, Esq. is the Director of the Cancer Advocacy & Elderlaw Projects.

When New York City went into lockdown in March 2020 and non-essential businesses closed, millions of people began working remotely, and some staff were furloughed or laid off.  The pandemic also underscored longstanding employment challenges faced by many cancer patients and survivors.  The arrival of COVID-19 vaccines raises hopes of returning to more normal times and employers are considering how best to reorganize their workplaces going forward. For some staff, remote working will become permanent, while others will call for a complete return to work or a hybrid option.  As a cancer patient or survivor, you may be especially anxious about potential risks involved in transitioning back to work.

In NYC, employees who have or have had cancer are protected by a number of federal, state and local laws, including the Americans with Disabilities Act (ADA) – which includes cancer as a disability, the Family and Medical Leave Act (FMLA), and Human Rights Laws.  Whether a particular law would apply greatly depends on the facts of each person’s case.  Under the ADA, you must be able to carry out the ‘essential duties’ of your job in order for its protections to apply to you.  One way to help achieve this, if needed, is to request a change to your normal routine which is called an “accommodation”.

The following section provides answers to frequently asked questions during the pandemic on considerations for cancer patients and survivors as they transition back to the workplace.

1. My employer is preparing to transition all employees from remote working back to the workplace. As a cancer patient, I’m worried. Do I have to go back anyway?

Speak with your employer about continuing to work from home while you undergo treatment.  Your employer may ask for medical documentation as part of the process of considering your request for an accommodation.

2. My current employer does not know about my cancer history. Do I have to reveal it if I ask to delay my return to the workplace?

Not necessarily.  Under the ADA, a request for an accommodation must be linked to a disability, therefore your employer can ask you disability-related questions; however, your doctor may be able to support your request without revealing the nature of the disability itself.  Based on that, your employer may agree to extend your remote working or suggest an alternative solution such as applying stringent protective measures in the workplace.  It is important for you to actively participate in the discussion.

3. If I can no longer carry out my essential job functions remotely once my workplace reopens, what can I do to protect myself when I go back?

As COVID-19-related precautions are still required in NYC, your employer may already have implemented measures designed to protect employees from coronavirus transmission within the workplace.  This may include temperature checks, requiring PPE, staggering shifts, installing plexiglass barriers and designating one-way systems for common areas.  If not, discuss your concerns with your employer to try to find an acceptable accommodation.

4. Can my employer require me to get a COVID-19 vaccine before I can return to the workplace?

Under the ADA, employers have the option to require their employees to get vaccinated due to the unprecedented circumstances.  However, there are exceptions.  If applicable, you can seek an exemption based on medical grounds or religious beliefs.  Alternatively, you can request an accommodation such as to work in a separate space or from home.

5. If I ask for an accommodation, does my employer have to agree to it?

No.  Your requested accommodation must be ‘reasonable’ and should not cause an ‘undue hardship’ – meaning “significant difficulty or expense” – for your employer.  A reasonable accommodation often involves an adjustment to work hours or duties, or simple changes within the workspace.  The size of the business, its budget and overall resources are factors to be weighed when determining if an accommodation would cause undue hardship.  It is important to explore possible alternatives in the process of discussing an accommodation.

With changes on the horizon, this may be a good time to consider how your work situation may change and how best to balance health concerns with retaining, or obtaining, employment.  Knowing how to present your case when requesting a reasonable accommodation can be crucial.  If possible, seek guidance from an employment attorney in advance.

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