Being diagnosed with cancer is an incredibly stressful and sensitive life event. It can be hard to continue functioning optimally in your day-to-day life, both because of your medical condition, the stress it causes, and the challenges of treatment. While medical-related questions may be foremost in your mind, you may be stressed about your ability to continue working and providing for yourself and your family. Many people who have been diagnosed are concerned about maintaining their health insurance for treatment in the face of their supervisors’ unfriendly attitude towards requests for accommodations.
The last thing you need if you’ve been diagnosed is stress about an unsupportive supervisor or employer. Here is a primer on your rights in the workplace to help you feel in control and understand your options.
Can My Employer Discriminate Against Me Because of My Diagnosis?
Short answer: No.
State and federal law protect you from discrimination and retaliation due to health impairments “related to or associated with” a diagnosis of cancer. At the federal level, you are protected by the Americans with Disabilities Act (ADA) if your employer has more than 15 employees. In California, the Fair Employment and Housing Act (FEHA) applies to employers with more than only 5 employees.
These laws prohibit employers from treating you differently because of your diagnosis or association with someone who has been diagnosed with cancer. An employer illegally discriminates or retaliates against you if they fire you, demote you, force you to take leave when you can otherwise work, deny you promotions, deny you assignments, or otherwise treat you differently from other employees because of your cancer diagnosis.
An employer illegally harasses you if they make frequent or severe unwelcome and offensive comments about your diagnosis, or related needs (such as time off work), or otherwise create an intolerable working environment.
Can I Take Leave to Treat or Manage My Diagnosis?
Short answer: Probably.
All employers covered by the ADA or FEHA are required to reasonably accommodate any known disabilities, including cancer. This means that if your employer is covered by these laws, they must accommodate your known disabilities, including by granting you leaves of absence, if it does not impose an “undue burden” on their business.
In addition to this general obligation to accommodate you, you may also be entitled to guaranteed, job-protected leave under State or federal law.
For instance, the Federal Family and Medical Leave Act (FMLA) establishes your right to 12 weeks of unpaid, job-protected leave. Since the leave is job-protected, your employer may not fire you for taking this leave and must hold your job or a similar one open for you when you return. You are entitled to take this leave when you are unable to work due because of a serious health condition, such as cancer, for treatment or recovery. This leave may be taken all at once or intermittently over time. You are typically eligible for FMLA leave only if you have worked at least 1,250 hours within the prior 12-month period.
California’s version of the FMLA, the California Family Rights Act (CFRA), applies to employers with as few as five employees. Otherwise, its eligibility requirements mirror the FMLA’s. You must be employed for one year and 1,250 hours to be eligible.
If you are eligible for job-protected leave, your employer cannot immediately terminate you upon the end of your 12 weeks of job protection. They must engage in the interactive process to determine whether they can accommodate additional leave.
Can I Ask My Job To Modify My Schedule Because of My Diagnosis?
As noted above, State and federal law require your employer to make reasonable accommodations to permit you to keep your job during and after treatment. Reasonable accommodations may include things like time off for appointments and treatments, a modified work schedule, an unpaid leave of absence, transfer to a less strenuous position, job restructuring, and more.
An employer’s duty to accommodate is triggered when you inform them of your need for accommodations. This means that it is best to be honest with your employer, in writing, about what you need, although this does not mean you need to disclose specifics about your diagnosis to them.
A Caregiver’s Right to Leaves of Absence
Family members may also be entitled to job-protected leave to care for and provide support to loved ones with cancer or cancer-related diagnoses. Caregivers may be entitled to up to 12 weeks of unpaid leave, either at once or intermittently, provided the leave is necessary to care for a spouse, child, or parent. Additionally, a caregiver is protected from retaliation, including termination, on the basis of their association with a person with cancer. In certain states, one may also be entitled to accommodations like a flexible work schedule to take a loved one to appointments or provide other care.
Contact an Experienced Discrimination Lawyer
At King & Siegel LLP, we have helped hundreds of workers hold employers accountable through legal actions. If you believe you have been illegally discriminated against due to your diagnosis or status as a caregiver, our attorneys are here to help.
We provide free, confidential consultations to California workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. If you have experienced employment discrimination in an interview, contact us today through our website or give us a call at (213) 465-4802 to schedule a free consultation.
Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.