Cancer in the Workplace

By: Ann C. Hodges, Co-founder, LINC and Professor of Law, University of Richmond

DisclaimerThis is a basic explanation of lawNot legal adviceEveryone’s circumstances are differentThe laws are complexFor legal advice, consult an attorney who can

get your full story and give advice based on all the facts

Cancer in the WorkplaceWork or Not?Legal ProtectionsEmployee ObligationsGaps in ProtectionFor More InformationPractical StrategiesLegal Assistance

Why Work?MoneyInsuranceDistraction/EnjoymentSocial SupportSolidify Employment Relationship

Why not work?Unable to work as a result of the cancer and/or

treatmentBetter for healing/treatmentNot working at time of diagnosisAltered preference for leisure v. workLack of accommodation/supportTerminated

Legal protections-

FMLA• Coverage – 50 or more

employees or gov’t employer, employed one year and worked 1250 hours in last year

• Twelve weeks unpaid job-protected leave for serious health conditions

• Can substitute paid leave at employer or employee request

• Health insurance continues• Intermittent leave available• Caregiver provision

FMLA – Employee Obligations

Notify employer 30 days before or as soon as possible

Provide medical documentation of need Try to schedule intermittent treatment to avoid

unduly disrupting employer’s business

FMLA -LimitsCoverage requirements exclude many (41% of

workers)Length of leaveUnpaid

Legal Protections – Americans with Disabilities Act

Coverage - Employers with 15 or more employees

Broad definition of disability will include most cancers

Bars discrimination on the basis of disability and requires reasonable accommodation

Must be qualified individual with a disabilityEmployer cannot ask about disability

Reasonable Accommodation

Must be reasonable Employer can show undue hardship – significant

difficulty or expenseCase-by-case determinationSome examples of possible accommodations –

extended leave, flexible schedules, telecommuting, assistance with job tasks, reassignment to a vacant job

Employee ObligationsNotify employer of need for accommodationProvide documentation of needEngage in interactive process to determine a

reasonable accommodation

ADA LimitationsSmall employers not coveredMust be able to do essential functions of job with or without

reasonable accommodationCourt interpretations of essential functions limit

accommodationsSome courts defer to employers and existing structuresHiring discrimination is hard to proveCase by case analysis makes prediction difficultSome courts allow employers to require most qualified for

reassignment

For More InformationADA which is enforced by the Equal Employment

Opportunity Commission - https://www.eeoc.gov/eeoc/publications/fs-ada.cfm

FMLA which is enforced by the U. S. Department of Labor - https://www.dol.gov/whd/fmla/index.htm

State lawsSome states have disability discrimination laws

and family and medical leave laws with different provisions and requirements

State law may be more protectiveA few states and localities have paid leave laws

but limited leave

Legal Protection - Disability

Social Security ActAge-based work requirements or income and asset eligibilityMust have a condition that prevents any work for

twelve months or expected to result in deathBenefits based on earnings or set by government for

SSI and dependents’ benefits availableFive month waiting period for benefitsMedicare eligibility after 24 monthsCompassionate allowances program can speed up

process of getting benefits and includes ovarian cancer with distant metastases or inoperable

Legal Protection - Disability

Five states and Puerto Rico have state disability programs

California, Hawaii, New Jersey, New York, and Rhode Island

Can get benefits from state program for temporary disability

Disability Benefits - Private

Can be provided by employer or purchased in marketEverything depends on the plan languageShort-term or long-termTotal or partial disabilityAny work or own occupationGoverned by different lawsEmployer-provided is cheaper If denied, follow plan appeal requirements carefully

Employee ObligationsApply for benefitsProvide evidence of meeting definition of

disabilityMeet all deadlines for application/appeal

Limits of disability benefitsOften no partial disability benefitsLack of coveragePublic benefits only in a few statesDelays in obtaining benefitsCost of privateChallenges of some cancer-related disabilities

like fatigue and cognitive impairments

For more informationSocial Security Disability -

https://www.ssa.gov/pubs/EN-05-10029.pdf Individual disability insurance -

http://www.dfr.vermont.gov/insurance/insurance-consumer/individual-disability-income-insurance and http://www.ncdoi.com/_Publications/Consumer%20Guide%20To%20Disability%20Insurance_CHE1.pdf

California disability insurance - http://www.edd.ca.gov/Disability/Disability_Insurance.htm

Legal Protection - Health Insurance

Patient Protection and Affordable Care ActLimits exclusions for preexisting conditionsEmployers with more than 50 employees must

provide to fulltime employeesLimits lifetime and annual benefit capsProvides more affordable coverageMakes available more affordable market-based

plans for those without employer coverageMandates certain coverage

Legal Protection – Health Insurance

COBRACoverage -Employers with 20 or more employeesMust offer continued insurance to those affected by

certain actions such as termination (except for gross misconduct), divorce, death of employee, hours reduction, aging out of dependent

At employer cost plus administrative fee rather than employee portion and thus expensive

Requires notice and election (60 day period)Must pay premiumsLasts eighteen months but if disabled may extend to

29 months but extension may cost more

Employee ObligationsFollow all plan requirementsMake required paymentsNotify employer of COBRA events and election in

timely mannerComplete all required paperwork in a timely

manner

Limits on Health Insurance Legal Protection

Still coverage gapsCost may be prohibitive for someWaiting periods (e.g. Medicare)Some plans may still have large deductibles, co-

pays, etc.

For more information PPACA -

https://www.cms.gov/cciio/resources/regulations-and-guidance/

COBRA - https://www.dol.gov/ebsa/faqs/faq-consumer-cobra.html

Employer PoliciesCheck employer policies regarding leave,

accommodation, transfers, light duty, disability, insurance, etc.

May or may not be legally enforceableComply with all policy requirements regarding

notice, reporting, appeals, etc.

Practical StrategiesWork with employer as much as possibleComply with all requirements of policies and

lawsUse an advocate – attorney, family member,

friendEnlist your doctor

For Legal AssistanceNational Employment Lawyers Association -

http://exchange.nela.org/network/findalawyerState NELA affiliatesLINC – www.cancerlinc.org (Central Virginia)National Cancer Legal Services Network -

http://www.nclsn.org/members/cancer-legal-resource-center/ (compilation of resources)

Medical/Legal Partnerships – http://medical-legalpartnership.org/