Article

Cancer at Work: Your Rights During Diagnosis, Treatment, and Recovery

Can you be fired for having cancer or taking time off for chemotherapy? How the ADA and FMLA protect workers with cancer, including medical privacy and accommodations.

8 min read

Cancer Usually Counts as a Disability Under the ADA

Title I of the Americans with Disabilities Act applies to private employers with 15 or more employees for 20 or more weeks in the current or preceding calendar year and to state and local government employers; federal workers are covered through the Rehabilitation Act, and many state laws reach smaller employers. After the ADA Amendments Act of 2008, the EEOC's regulation at 29 CFR 1630.2 states that cancer substantially limits normal cell growth, and that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The EEOC's cancer guidance explains that people who currently have cancer, or whose cancer is in remission, should easily meet the definition. A past history of cancer is covered as a record of a disability, and a worker who is fired or refused a job because the employer believes they have cancer can be covered as regarded as having a disability.

What an Employer Can Ask Before and After a Job Offer

Before a conditional job offer, an employer may not ask whether you have or had cancer, whether you are receiving chemotherapy or radiation, or how much sick leave you took, and it may not require a medical exam. It may ask whether you can perform the job, such as lifting a stated weight or working rotating shifts. You do not have to disclose cancer to get hired unless you need an accommodation during the application process. If you volunteer it, the employer generally may not ask follow-up questions about your cancer or treatment; if it reasonably believes you will need an accommodation to do the job, it may ask only whether you will need one and what type. After an offer, an employer may ask health questions or require an exam if it does so for everyone entering the same job, but under the EEOC guidance it may not withdraw the offer if you can do the essential functions, with or without accommodation, without posing a direct threat.

Medical Questions During Employment

Once you are working, 29 CFR 1630.14 limits disability-related questions and exams to those that are job-related and consistent with business necessity. The EEOC explains that an employer may ask about cancer when it knows of the condition, sees performance problems, and reasonably believes they are related; when it needs information to evaluate an accommodation request; when it requires the same doctor's note from everyone using sick leave; or when it has a reasonable belief that you cannot safely do the job. Before you return from cancer-related leave, it may ask for medical information only if it reasonably believes you may be unable to do the job or may pose a safety risk, and then only what it needs to assess your present ability to do the job safely, not your entire medical file. Poor attendance with no objective link to a medical condition is not a license to ask whether your cancer has returned.

Your Diagnosis Must Stay Confidential

Medical information an employer obtains must be kept confidential, with limited exceptions: supervisors who need to know about restrictions or accommodations, first aid and safety personnel, government officials investigating compliance, and workers' compensation or insurance processing. The EEOC says an employer may not explain to coworkers that you have cancer, even if you have lost weight or appear tired, may not explain why you have been absent, and should not tell coworkers you are receiving an accommodation. You may choose to share your own diagnosis, but the EEOC's position is that this does not free the employer to spread it. If a manager announced your diagnosis at a meeting or in a group message, note who said what and when.

Accommodations During Chemotherapy, Radiation, and Recovery

An employer must provide a reasonable accommodation needed because of limitations from cancer, the side effects of treatment, or both, unless it would cause undue hardship, meaning significant difficulty or expense. The EEOC lists examples such as leave for appointments and recovery, periodic breaks or a private place to rest or take medication, a modified schedule or shift change, working from home, temperature changes, reassigning marginal tasks, and reassignment to a vacant position you are qualified for when you can no longer do your current job. There are no magic words: telling a supervisor you need a change at work because of cancer treatment is a request, and a family member or health professional can ask for you. The duty is ongoing, so a new request after returning to work must be considered on its own. An employer does not have to remove essential functions, and it may choose an effective alternative rather than your first choice.

Leave Without an Exact Return Date

The EEOC states that an employer may not automatically deny cancer-related leave because you cannot give an exact return date, since treatment and side effects are often unpredictable. An approximate estimate, such as six to eight weeks, may be enough. The employer may require periodic updates and may reevaluate whether continued leave has become an undue hardship. An employer may ask for reasonable documentation when the disability or need is not obvious, but only enough to establish the condition and explain why the accommodation is needed. A demand for your complete medical records is generally inappropriate. Keep your updates in writing and give realistic estimates.

FMLA Leave for Cancer Treatment

The Family and Medical Leave Act separately gives eligible employees up to 12 workweeks of job-protected leave in a 12-month period for their own serious health condition that makes them unable to perform their job or to care for a spouse, child, or parent with one. You are generally eligible if you have worked for a covered employer for at least 12 months and at least 1,250 hours in the past year at a site with 50 or more employees within 75 miles. The Labor Department's regulation at 29 CFR 825.115 lists cancer treatment such as chemotherapy and radiation as an example of continuing treatment that qualifies. Under 29 CFR 825.202, leave can be taken intermittently or on a reduced schedule when medically necessary, which fits treatment cycles. At the end of FMLA leave you generally must be restored to the same or an equivalent job, subject to limited exceptions. When FMLA runs out, additional leave may still be required as an ADA accommodation.

Safety Fears and Stereotypes Are Not a Defense

An employer may exclude someone with cancer from a job for safety reasons only if the person poses a direct threat: a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. Under 29 CFR 1630.2, that decision must rest on an individualized assessment of present ability using the most current medical knowledge or best available objective evidence, considering the duration, severity, likelihood, and imminence of the harm. The EEOC gives the example that a school district may not demote a principal successfully treated for lymphoma because it fears the job's stress may trigger a relapse. The EEOC notes that workers with cancer often face misperceptions that they will need long absences or will be unable to focus on job duties, even when the prognosis is excellent; decisions based on those assumptions rather than your actual ability are the kind the ADA addresses.

Harassment and Retaliation

The ADA prohibits disability-based harassment that is severe or frequent enough to create a hostile work environment or that results in an adverse decision, which can include ridicule, insults, or offensive jokes about hair loss, weight loss, or other effects of treatment. Under 42 U.S.C. 12203 it is also unlawful to retaliate against you for opposing disability discrimination or taking part in a charge, and the EEOC states that retaliation for requesting a reasonable accommodation is unlawful. FMLA separately prohibits interfering with leave rights and retaliating for using them. Watch for sudden negative reviews, removed duties, a reduced schedule you did not request, or termination shortly after a diagnosis, a leave request, or a complaint.

Deadlines and Records

An ADA charge with the EEOC generally must be filed within 180 calendar days of the discriminatory act, extended to 300 days where a state or local agency enforces a law prohibiting the same kind of discrimination. Federal employees generally must contact an agency EEO counselor within 45 days. FMLA claims are brought under a separate process and have their own time limits. Keep copies of accommodation requests and responses, doctor's notes you submitted, leave approvals or denials, schedules, performance reviews before and after the diagnosis, and any messages mentioning your illness or treatment. Do not take confidential employer or patient records you are not entitled to keep.

When to Get a Free Consult

Get a free consult if you were fired, demoted, or had an offer withdrawn after a cancer diagnosis, were denied leave or schedule changes for chemotherapy, radiation, or recovery, were told you could not return without an exact date, had your diagnosis shared with coworkers, were questioned about whether your cancer came back without a job-related reason, or faced discipline after requesting leave or an accommodation. An attorney can review the timing, the employer's stated reasons, and which federal and state laws apply. No fee unless we win.

Primary Sources

Think You Have a Case?

This article is general information, not legal advice. For a review of your situation, get a free consult with the YesLawyer team.

Get Your Free Consult

Related Resources

Guide

Your FMLA Rights: A Complete Guide to Family and Medical Leave

Article

ADA Workplace Accommodations: Request and Denial Rights

Article

Fired Because of a Disability? Rights to Check

Article

Can My Employer Share My Medical Information?

Article

Employee Medical Exam Rights Under the ADA

Article

Intermittent FMLA Leave: Recurring Absence and Reduced Schedule Rights

Article

Can You Take Medical Leave Without FMLA?

Article

EEOC Deadlines: 180 Days vs. 300 Days Explained

Article

Diabetes at Work: Your Rights to Breaks, Privacy, and Fair Treatment