Employment Law Update

November 11, 2005

Highlight Article

New Equal employment Opportunity Commission fact sheet addresses

Cancer in the Workplace

By Monica Sanchez

With approximately 40 percent of the one million Americans diagnosed with cancer each year being working age adults and nearly 10 million Americans having a history of cancer, the United States Equal Employment Opportunity Commission (EEOC) has issued a new Question and Answer Fact Sheet about Cancer in the Workplace and complying with the American with Disabilities Act (ADA).    

The EEOC notes, “despite significant gains in cancer survival rates and the passage of the ADA, people with cancer still experience barriers to equal job opportunities.  The EEOC blames supervisor and co-worker misperceptions about an employee’s ability to work during and after cancer treatment as one reason why individuals with cancer face discrimination at work. 

The EEOC enforces the employment provisions of the ADA.  Therefore, this fact sheet was created by the EEOC to explain how the ADA might apply to job applicants and employees who have or have had cancer.  In particular, the fact sheet explains: when cancer is a disability under the ADA; when an employer may ask an applicant or employee questions about his or her cancer and how it should treat voluntary disclosures; what types of reasonable accommodations employees with cancer may need; and how employers can ensure that they do not discriminate against applicants and employees with cancer.

 THE AMERICAN WITH DISABILITIES ACT

The American with Disabilities Act (ADA) is a federal law that prohibits discrimination, harassment, and retaliation against individuals with disabilities.  Title I of the ADA prohibits private employers with fifteen or more employees, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. 

In addition, the California Fair Employment and Housing Act (FEHA) prohibits employment discrimination, harassment, and retaliation on the basis of a “physical disability, mental disability, and medical condition.   Gov. C. § 12940(a).  Under California law, a “medical condition” means “any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer” or genetic characteristics.  Gov. C. § 12926(h).  The FEHA protections against disability discrimination are independent of those the ADA provides and in certain important areas, the FEHA provides broader protections to employees then the ADA.  For example the FEHA applies to smaller employers than the ADA, it applies to employers with five or more employees.  In addition, while the ADA limits coverage to physical and mental conditions that “substantially limit” a major life activity, the FEHA requires only that the disability “limit” such activity.  This distinction results in broader coverage under the California FEHA than the ADA. Gov. C. § 12926.1(c),(d)(2).

Under the ADA, an individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. The United States Supreme Court has held that “major life activities” refers to those activities that are of central importance to daily life.  Toyota Motor Mfg., Kentucky, Inc. v. Williams (2002) 534 US 184, 197. 

The EEOC fact sheet explains that “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. Even when the cancer itself does not substantially limit any major life activity (such as when it is diagnosed and treated early), it can lead to the occurrence of other impairments that may be disabilities.”  Cancer can also be a disability because it was substantially limiting some time in the past and also when it does not significantly affect a person’s major life activities, but the employer treats the individual as if it does.  In deciding whether an employee has, has had a record of, or is regarded as having a disability under the ADA, is made on a case-by-case basis.

WHAT QUESTIONS MAY AN EMPLOYER ASK OF AN APPLICANT OR EMPLOYEE?

In addition, Title I of the ADA and the FEHA cover medical examinations and inquiries of both applicants and employees. 

A.           Before an offer of employment is made

California employers may not ask or require a job applicant to take a medical examination before making a job offer.  Absent a request for a reasonable accommodation during the hiring process, an employer cannot make any pre-employment inquiry about a disability or the nature of the severity of a disability.  Therefore, an employer cannot ask an applicant questions such as: whether he/she has or has ever had cancer, is undergoing chemotherapy, radiation, or taking medication used to treat or control cancer or taken leave for surgery or medical treatment.  

However an employer may inquire into a job applicant’s ability to perform job-related functions and respond to an applicant’s request for a reasonable accommodation. Gov. C. § 12940(e)(2). The EEOC fact sheet explains, that an employer also may ask any applicant questions pertaining to the performance of the job; such as, whether the applicant can lift up to 50 pounds, travel out of town, or work rotating shifts. 

B.           After an offer of employment is made

After a job offer has been made and before employment duties have commenced, the applicant may be required to answer medical or psychological inquiries and submit to medical or psychological examinations, if the inquiry and examination is job related; consistent with business necessity; and required of all entering employees in the same job classification.  Gov. C. § 12940(e)(3). 

C.          Employees

Once an employee is hired, an employer may require of existing employees any examination or inquires that it can show to be job-related and consistent with business necessity.  Gov. C. § 12940(f)(2). 

EMPLOYER’S DUTY TO REASONABLY ACCOMMODATE AN EMPLOYEE WITH CANCER

The ADA also requires an employer to make a reasonable accommodation to the known disability of a “qualified individual with a disability” if it would not impose an “undue hardship” on the operation of the employer’s business. California employers should note that under California law the FEHA is much broader than the ADA and the affirmative duty that is placed on employers is to reasonably accommodate “any applicant or employee.”   Under the ADA, an “undue hardship” is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation. 42 USC § 12111(10)(B); See also, Gov. C. 12926(s).   The EEOC notes that an accommodation that an employee with cancer might need usually involves little or no cost to the employer.

In addition, the ADA and the FEHA require an employer to participate in an “interactive process” between the employer and the applicant or employee with a known disability.  California law incorporates guidelines that were developed by the EEOC in defining the “interactive process” and include: consulting with the individual to ascertain the precise job-related limitations and how they could be overcome with a reasonable accommodation as well as, identifying potential accommodations and assessing their effectiveness.  Employers should be aware that the interactive process applies to both existing employees and job applicants.  See, Zivkovic v. Southern Calif. Edison Co. (9th Cir. 2002) 302 F3d 1080, 1089. 

Accommodations vary depending on the needs of an individual with a disability and not all employees with cancer will need an accommodation or require the same accommodations. An employer must provide a reasonable accommodation that is needed because of the limitations that are caused by the cancer itself, the side effects of medication or treatment for the cancer, or both.  The EEOC explains that employees with cancer may need one or more of the following accommodations: leave for doctor’s appointments and/or to seek or recuperate from treatment; periodic breaks or a private rest area to take medication; and adjustments to work schedules.

 WHAT EMPLOYERS SHOULD DO

Although the ADA and Title VII prohibit disability discrimination, the statistics released by the EEOC make it clear that disability discrimination is a problem that still exists in the workplace today. The EEOC reported that in 2004 they received 15,376 charges of disability discrimination and recovered $47.7 million in monetary benefits for aggrieved individuals, not including monetary benefits which were obtained through litigation.  Employers should train and educate their supervisors and managers regarding disability discrimination so that they understand their duties and responsibilities to provide accessible workplaces to ensure that physical or mental limitations are not overwhelming barriers to those that are willing to work. 

The question and answer fact sheet about cancer in the workplace and the ADA is available at the EEOC’s website at http://www.eeoc.gov/facts/cancer.html

For more information contact Monica Sanchez at msanchez@kringandchung.com or (949) 261-7700.

This article was prepared by Monica Sanchez  , who is an associate at Kring & Chung, LLP’s Irvine and San Diego office. You can reach Ms. Sanchez at msanchez@kringandchung.com  or at (949) 261-7700.

** The information contained herein is for informational purposes only and should not be relied upon in reaching a conclusion in a particular area. The legal principles discussed herein were accurate at the time this article was authored but are subject to change with time. Applicability of these same legal principles may differ substantially in individual situations. Please consult an attorney before making a decision in a particular area using only the information provided in this article.

Kring & Chung, LLP is one of California’s fastest growing full-service law firms. With over forty attorneys, the firm practices business and corporate matters, construction, real estate, labor & employment, insurance, estate planning and family law. The employment department of the firm serves the businesses and individuals offering a wide range of services including:  employment consulting, employee handbooks, wrongful termination, discrimination litigation and more.

Construction & Real Estate
Business & Corporate
Labor & Employment
Civil Litigation & Insurance Law