Workplace Discrimination Protections

Sometimes cancer survivors may face discrimination in the workplace. Cancer survivors have some protections under 3 federal laws:

  • The Americans with Disabilities Act (ADA)
  • The Family and Medical Leave Act (FMLA)
  • The Employee Retirement and Income Security Act (ERISA)
Sometimes cancer survivors may face discrimination in the workplace.

Sometimes cancer survivors may face discrimination in the workplace.

  1. The Americans with Disabilities Act (ADA) prohibits employers, employment agencies, and labor unions from discriminating against people with disabilities. The employers covered by the law include:

    • All private employers with 15 or more employees
    • State and local governments
    • The legislative branch of the federal government
    • Employment agencies
    • Labor unions

    Whether the ADA covers a cancer survivor depends on the individual case. Some courts have concluded cancer survivors are disabled. Others have found that simply being a cancer survivor, when healthy enough to work, is not a disability as defined by the ADA.

    The ADA prohibits discrimination when it comes to hiring, firing, and benefits. For instance, employers cannot ask job applicants if they have ever had cancer. But employers do have the right to know if an applicant can perform essential functions of a job. Also, employers can require prospective employees to pass a relevant medical exam.

    The law requires employers to treat all employees similarly, regardless of disability. An employer may fire a cancer survivor who would have been terminated even if he or she was not a survivor.

    The ADA also prohibits discrimination against family members. Employers may not discriminate against workers because of their relationship or association with a “disabled” person. Employers may not assume that an employee's job performance would be affected by the need to care for a family member who has cancer.

    Accommodations under the ADA

    The law requires “reasonable accommodation” as long as it is not an “undue hardship” for the employer. Reasonable accommodations generally include changes in work hours or duties because of treatment or doctor’s appointments. An example of an undue hardship may be a situation where an employee must miss a year of work and a temporary employee cannot fill that position.

  2. The Family and Medical Leave Act (FMLA) provides 12 weeks of unpaid leave for employees of companies with more than 50 employees.

    The law:

    • Permits leave to care for a spouse, child, or parent.
    • Requires employers to continue providing benefits during the leave, including health insurance coverage.
    • Ensures employees return to the same or equivalent position.
    • Permits a reduced work schedule because of surgery, treatment, or for other medically necessary reasons.
    • Allows employees in states with additional medical leave laws under the FMLA to take or “stack” leave.

    The FMLA requires employees to provide certification of medical needs. The employer can ask the employee to get a second opinion, at the employer’s expense, to confirm the medical need.

    The law also requires employees make reasonable efforts to schedule medical care in advance. For instance, employees must give their employer 30 days’ notice of expected medical leave, such as a scheduled surgery, or as much notice as possible.

    For more information, read the FMLA Fact Sheet, call 1-866-4-USWAGE (1-866-487-9243) or visit the Department of Labor’s Wage and Hour Division website.

  3. The Employee Retirement and Income Security Act (ERISA) prohibits employers from using knowledge of a worker’s health history to exclude him or her from employee benefit plans. ERISA covers both employees and their beneficiaries (spouses and children.) If an employee is fired because his or her child has cancer, the employee may be covered by the law.

    ERISA also permits employees to appeal insurance coverage decisions and to sue the employer or insurer if benefits are not provided in line with ERISA rules. For more information, visit the Department of Labor website.

Reviewed: May 2020