St. John University’s basketball coach, Steve Lavin, is now cancer free and ready to return to his post. Lavin missed almost all of last season while recuperating from prostate cancer. Last October, he underwent surgery and returned to coach only four games in November before he had a set back and was forced to take a leave of absence. Lavin is just now ready to return to lead the Red Riders. Lavin’s battle with cancer and his need for a leave of absence is a common situation faced by many employers and employees, which is further evidenced by recent news that Indianapolis Colt’s head coach, Chuck Pagano, was diagnosed with leukemia and will be undergoing treatment for several weeks. These situations can be especially difficult when the employee has financial obligations and pressures that require the employee to continue working during treatment for cancer, even though the employee may not be physically able to perform their duties. In handling these situations, employers must be mindful of their obligations under the Americans with Disabilities Act (ADA). The ADA is a federal law that prohibits discrimination against individuals with disabilities. There are several situations when cancer can be a disability, including:
- Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person’s major life activities. The Equal Employment Opportunity Commission provides the following example of this situation in its Questions and Answers About Cancer in the Workplace and the Americans with Disabilities Act:
Example: Following a lumpectomy and radiation for aggressive breast cancer, a computer sales representative experienced extreme nausea and constant fatigue for six months. She continued to work during her treatment, although she frequently had to come in later in the morning, work later in the evening to make up the time and take breaks when she experienced nausea and vomiting. She was too exhausted when she came home to cook, shop, or do household chores and had to rely almost exclusively on her husband and children to do these tasks. This individual’s cancer is a disability because it substantially limits her ability to care for herself.
- Even in situations when an employee’s cancer itself does not substantially limit any major life activity (such as when it is diagnosed and treated early), it can lead to other impairments that do constitute a disability. Depression, for example, can develop which is a disability.
- Cancer is a disability when it does not actually affect the employee’s major life activities, but the employer treats the employee like they have a disability. For example, an employer refuses to schedule an employee with cancer more than 20 hours per week because it is worried that the workload is too much.
In most situations, an employee with cancer will be deemed disabled. Therefore, employers should focus on providing adjustments or modifications needed because of the limitations caused by the cancer itself, the side effects of medication or treatment for the cancer, or both. For example, an employer may have to accommodate an employee who is unable to work while she is undergoing chemotherapy or who has depression as a result of cancer, the treatment for it, or both. Examples of accommodations include, but are not limited to, the following: (1) providing a leave for doctors’ appointments; (2) allowing periodic breaks to rest; and (3) making adjustments to a work schedule or allowing a flex schedule. To ensure compliance with the ADA employers should review their existing policies and employee handbook provisions to make sure that their operations are sound. If you do not have any policies in place, consider implementing an equal employment opportunity policy that acknowledges your commitment to providing qualified applicants and employees with disabilities reasonable accommodations unless doing so would cause an undue burden. For more information about cancer in the workplace and the Americans with Disabilities Act, visit www.eeoc.gov/facts/cancer.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
