Protecting the Rights of Employees with Cancer, by Vivienne Duncan

Since the onset of the Great Recession, thousands of people in the United States have been diagnosed with some form of cancer. For many of them, obtaining the most effective treatment is bound up with a host of interconnected concerns such as obtaining effective treatment, dealing with the financial burdens of out-of-pocket expenses (co-pays, deductibles, etc.), and preparing life-planning documents that reflect their wishes – an especially important consideration for those with minor children.

Another frequently expressed concern involves job-security, a heightened fear in tough economic times. As many people still obtain health insurance coverage through their workplace, the consequences of a job loss can be particularly challenging for those diagnosed with cancer, even with the new options available under the Affordable Care Act. The Cancer Advocacy Project (CAP) receives many calls from cancer patients who, before revealing their diagnosis at work, had received no performance-related complaints, but afterwards found their work criticized and every action scrutinized. Informing cancer patients and survivors about their rights in the workplace is an important element of CAP’s services.

Earlier this year, the Family Care Center at Calvary Hospital hosted a CAP employment rights presentation for patients, survivors and medical service providers. Arnold Pedowitz, a founding partner of Pedowitz & Meister, LLP, a recipient of the City Bar Justice Center’s 2013 Jeremy G. Epstein Award for Pro Bono Service, and longstanding CAP volunteer, gave the presentation. He addressed key legislative protections, including the Americans with Disabilities Act (ADA) and answered commonly asked questions such as: “Should I disclose my diagnosis to all my work colleagues or only key people?” “Can my employer fire me if I need time off?” “How much time can I take and what should I say when asking for leave?” “What happens if they refuse my request?” “Can my employer fire me if I need to work fewer hours or modify my work when I return?”

A common and potentially dangerous misconception for cancer patients is the belief that an employee with cancer cannot be fired for any reason. As the presentation made clear, an employer has the right to terminate an employee, including someone with cancer, if he or she cannot perform essential job duties. Individuals with a disability as defined by the ADA may ask for reasonable accommodations that would enable them to carry out their work duties. However, an employer may terminate an employee if the requested accommodations would impose an undue burden on the business. Similarly, a cancer patient or survivor will not be protected from termination where the problem behavior or actions are unrelated to their disability, such as theft and other serious breaches.

With support from Judges and Lawyers Breast Cancer Alert (JALBCA), the City Bar Justice Center’s Cancer Advocacy Project (CAP) offers free community presentations and workshops for cancer-related groups and organizations in New York City on a number of topics, and has developed a range of useful informational guides.

If you would like a copy of CAP’s Employment Rights for Cancer Patients guide or a list of our other guides, or to schedule a presentation or to learn about volunteer opportunities for attorneys, please call us at 212-382-4785, or email us here.

Vivienne Duncan is Director of the City Bar Justice Center’s Cancer Advocacy Project