Americans with disabilities act

The ADA prohibits many types of job discrimination by employers, employment agencies, state and local governments, and labor unions. In addition, most states have laws that prohibit discrimination based on disabilities, although what these laws cover varies widely. The ADA prohibits discrimination based on actual disability, perceived disability, or history of a disability. Any employer with 15 or more workers is covered by the ADA.

The ADA requires that:

• Employers cannot make medical inquiries of an applicant, unless one of the following situations applies:

  • Applicant has a visible disability, such as amputation.

  • Applicant has voluntarily disclosed cancer history.

• Such questions are limited to asking the applicant to describe or demonstrate how he would perform essential job functions. Medical inquiries are allowed after a job offer has been made or during a pre-employment medical exam.

• Employers provide reasonable accommodations, unless it causes undue hardship. An accommodation is a change in duties or work hours to help employees during or after cancer treatment. An employer is not required to make these changes if the changes are very costly, disruptive, or unsafe.

• Employers cannot discriminate because of family illness. For instance, if an employee has a child who has cancer, the employer cannot treat the employee differently thinking that the employee might miss work or file expensive health insurance claims.

• If employers offer healthcare, they must offer healthcare fairly to all employees. However, employers are not required to provide health insurance.

In Canada, the Canadian Human Rights Act provides essentially the same rights as the ADA. The act is administered by the Canadian Human Rights Commission. See Resources at the end of the chapter.

The Federal Rehabilitation Act

The Federal Rehabilitation Act bans public employers and private employers that receive public funds from discriminating on the basis of disability. The following employees are not covered by the ADA, but are governed by the Rehabilitation Act:

• Employees of the executive branch of the federal government (Section 501 of the Rehabilitation Act)

• Employees of employers who receive federal contracts and have fewer than 15 workers (Section 503 of the Rehabilitation Act)

• Employees of employers who receive federal financial assistance and have fewer than 15 workers (Section 504 of the Rehabilitation Act)

If you are a federal employee (Section 501), you must file a claim within 30 days of the job action against you. If you are an employee whose employer has a federal contract (Section 503), you must file a complaint within 180 days with your local office of the U.S. Department of Labor, Office of Federal Contract Compliance Programs. If your employer receives federal funds (Section 504), you have up to 180 days to file a complaint with the federal agency that provided funds to your employer, or you can file a law-suit in a federal court.

The federal Rehabilitation Act is enforced by the Civil Rights Division of the US Department of Justice. See Resources under Civil Rights Division for website and contact information.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is a federal law that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Reasons for leave include: caring for a seriously ill child caring for another family member who is seriously ill, when employee is unable to work because of his/her own medical condition, or birth or adoption of a child or foster care placement. An employee must have worked 25 hours per week for 1 year to be covered. Some states offer paid family leave. For more details about those eligible and conditions, see Resources at the end of the chapter for website of Office of Disability Employment Policy (ODEP).

The FMLA conditions:

• Applies to employers with 50+ employees within a 75-mile radius.

• Applies to employees who have been employed for 12 months and worked 1250 hours in a 12-month period

• Provides 12 weeks of unpaid leave during any 12-month period to care for serious illness of self, spouse, child, or parent. In certain instances, the employee may take intermittent leave, such as reducing normal work hours.

• Requires employers to continue to provide benefits, including health insurance, during the leave period.

• Allows leave when a health condition renders an employee unable to perform the functions of the position.

• Requires employees to make reasonable efforts to schedule leave so as not to disrupt the workplace.

• Requires employers to return employee to the same or equivalent job position upon return from the leave. Some benefits, such as seniority, need not accrue during periods of unpaid FMLA leave.

• Requires employees to give 30-day notice of the need to take FMLA leave when the need is foreseeable.

• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;”

• Twenty-six work weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

• You have up to 2 years to file an FMLA complaint or a lawsuit.

FMLA is enforced by complaints to the Employment Standards Administration, Wage and Hour Division, U.S. Department of Labor, or by private lawsuit. For more information and contact information, see Resources at the end of the chapter.

State laws regarding discrimination

The District of Columbia and almost all states have laws banning discrimination against people with disabilities. The type of protection varies from state to state. For information about your state laws, contact the state agency that enforces employment rights, the local bar association, the National Coalition for Cancer Survivorship, or your state chapter of the American Cancer Society. To file a complaint under state law, contact your state civil rights or human rights commission. See Website: https://www.eeoc.gov, Search, filing charge discrimination

Changing jobs

Survivors are often reluctant to change jobs because of fear of losing insurance for themselves and their families. A cancer history requires lifelong medical surveillance that may be impossible to finance without insurance. Survivors often stay in unsatisfying jobs that offer health insurance because they cannot risk losing health insurance if they take a better job. This is sometimes called job lock. Parents of young survivors also face the same dilemma. There will be a bigger safety net under the Patient Protection and Affordable Care Act (ACA). Despite many of the positive impacts on insurability and healthcare among childhood cancer survivors, the ACA has not provided health care affordability as it was planned (Fiala, 2021). Still, staying in a job with better coverage may continue to be a real issue.

Armed services, police and fire department personnel

Some survivors of childhood cancer may want to enlist in the Armed Services including the Reserve Officers’ Training Corps (ROTC), the Reserves, or the service academies or work for a police or fire department. Applications from survivors for the Armed Services are considered on a case-by-case basis, and you may be eligible for a medical waiver to obtain admission.

Applicants are asked to provide information about their disease, treatment, and current health status. The recruiter should also be given the results from a recent medical examination and articles from the latest medical literature. If you are granted a waiver, you must still meet the physical requirements for the position sought.

Childhood cancer survivors interested in applying for training or jobs in police and fire departments will need to check their local department’s standards for physical requirements. Generally, one’s current physical condition is what matters, and employers cannot ask about health history until they have made a conditional job offer.