Cancer and the Workplace
Cancer is a disease that impacts many Americans. Since 2005, cancer surpassed heart disease as the leading cause of death in the United States. The American Society of Clinical Oncology says cancer survivors who return to the workplace can face subtle or obvious discrimination. Some employers, the Society says, may assume that a worker's productivity will decline or that performance will fall below the company's standards. There may be discrimination when it comes to promotions or transfers, the Society says. This may include a demotion, being refused a job opening or having trouble taking time off for medical appointments. There is no legal requirement in place that holds employees to tell their employers about their cancer. Some feel that if cancer does not affect an employee's ability to do their job, there is no reason they should be required to inform their employer of their disease. Even prospective employers do not need to be informed unless the applicant is currently in treatment. The Americans With Disabilities Act prohibits workplace discrimination based on disabilities, including diseases such as cancer, for employers with more than 15 workers. The Family Medical Leave Act requires employers with 50 or more workers to provide up to 12 weeks of unpaid leave for serious illness. Do you think cancer negatively impacts productivity? Employees have been found to be more productive after treatment. Does the possible future productivity of the employee outweigh the current implications associated with cancer (medical appointments, etc.)? Is it wrong to deny promotions to someone with cancer? Companies worry that soon after promotion and more responsibility, employees will have to leave work to care for their illness. Is this a viable concern or is it simply an excuse? Lastly, should employees be required to tell employers of their disease? Many employees fear losing their health insurance and job if their employer were to know of their cancer. However, cancer does demand a lot from an employer and the company's resources.
posted by Lauren at
1:11 PM
1 Comments:
Before I address your questions, I think it deserves mentioning that the courts have determined there are no per say disabilities. This means that the court must look at the plaintiff's impairment individually without making broad assumptions. With that in mind, we cannot assume that just because an employee has cancer, she is automatically disabled. She still must meet the disability definition explained in class. But for my answers to your questions, let's assume we're dealing with a qualified employee with cancer who is considered "disabled" under the ADA (unless mentioned otherwise).
Whether or not cancer affects productivity, employers are precluded from imposing adverse employment actions against an employee with cancer because of the disability. I would assume for many employers, reasonable accommodations would include time off for medical appointments, treatment, and the like.
These adverse employement actions include not promoting an employee either because of her actual or perceived impairment.
You point out that companies are hesitant to promote employees with cancer because they may not be available to work in the future. The "regarded as" prong of the disability definition was designed to combat these types of negative assumptions. If the employer chooses not to promote the employee with cancer because it automatically assumes she will not be as productive as other nondisabled employees, the employer should be punished for harboring such stereotypes.
I do not think employees should be forced to tell their employers if they have cancer. Clearly they do not have a choice if they need to request accommodations. But if they can perform the essential job functions without accommodations while being substantially limited in a major life activity, then the employee's privacy rights should prevail.
As for your argument that cancer "demand[s] a lot from the emloyer and the company's resources," if the only available accommodations impose an undue hardship on the employer, then they are deemed not reasonable. If the employee cannot perform the essential functions of the job with or without reasonable accommodations, she is not "qualified" and thus not protected under the ADA.
I think the ADA does an adequate job of balancing employers' cost concerns with employees' equal employment needs when the employee is actually disabled ("actual" being the term used in class to signify the first prong of the disability definition). Employers may be worried about the bottom line, but these concerns are rightly trumped by one of the fundamental rights on which this country was made - the right to equality.
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