Going to Work After a Cancer Diagnosis

A cancer diagnosis is among the most challenging experiences a person will ever face. A cancer diagnosis will undoubtedly be a life-altering experience and reshape one's perspective on life. Examinations, treatment, possible surgery, emotional turmoil, financial worries, and physical changes may cause many issues. Depending on the employee’s circumstances, working can be an important component of recovery.

Some individuals will continue to work after a cancer diagnosis without taking a leave of absence. This can be a vehicle for financial stability, normalcy, and maintaining control over one’s life. Whether this is feasible for an employee will depend how advanced or aggressive the disease is, whether cancer removal surgery is necessary, how physically and mentally demanding the work environment is, and how accommodating the employer and coworkers are.

Other individuals will only be able to resume work after taking a leave of absence and undergoing all necessary treatment and recovering from treatment. Returning to the job after a cancer diagnosis can be empowering. Resuming a work routine can symbolize victory over the disease or a commitment to live as fully as possible amidst or after medical treatment. Employees must communicate with their employer before they anticipate returning to work. This will allow time, if necessary, to provide the employer a doctor’s note clearing the employee to return and identifying any work restrictions (e.g. limits on an employee’s ability to lift heavy objections, or sit, stand, or walk for extended periods etc.).

California law provides special protections for workers diagnosed with cancer. The Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, prohibits California employers with five or more employees from discriminating against an employee because of a cancer diagnosis or a physical or mental health impairment related to a cancer diagnosis. Under the FEHA, a cancer-related physical or mental health impairment is a “Medical Condition.” (California Code of Regulations. title 2, section 11065.)

Situations Where California Law Does not Fully Protect Workers Diagnosed With Cancer From Discrimination

In certain situations an employer may discriminate against an employee based on a cancer-related physical or mental health impairment if the employer has an objective, legally recognized justification for doing so. For example, if an employee is unable to work in any capacity for an extended time of time (many months) due to a cancer-related physical or mental health impairment, firing the employee may or may not violate the FEHA. These situations are fact intensive and require the expertise of an experienced employment attorney. The experienced employment attorneys at Kokozian Law Firm, APC have the experience and knowledge to determine if a viable wrongful termination claim exists.

Whether an employee choose to work while undergoing treatment, or take a leave of absence from work for treatment and recovery before returning to work, the employee will likely find that the employee cannot do everything they were able to do before the cancer diagnosis. The employee may not have as much stamina as before. The employee may find it more difficult to concentrate on tasks than before. The employee may be unable to perform certain job tasks or perform them as quickly as before. If the cancer diagnosis has affected the employee’s ability to perform his/her job, the employee will likely need reasonable accommodations from the employer in order to work.

The FEHA requires California employers with five or more employees to provide reasonable accommodations for workers with a physical or mental disability resulting from a cancer diagnosis. Employers have an affirmative duty to provide reasonable accommodations unless the employer can demonstrate, after engaging in the interactive process, that the accommodation would impose an undue hardship.

(The FEHA requires an employer to engage in a timely, good faith “Interactive Process” with an employee with a known medical condition to identify or implement effective, reasonable accommodations for the employee. California Code of Regulations. title 2, section 11069.)

(Under the FEHA, “Undue Hardship” means an accommodation requiring significant difficulty or expense, or is overly extensive or disruptive, in light of such factors as the nature and cost of the accommodation needed, the overall resources of the employer, and the number of employees at the worksite. California Government Code section 12926(u).)

A reasonable accommodation is a modification or adjustment to the job, the work environment, or the way job tasks are usually performed that enables the employee, as a person with a physical or mental health impairment related to the cancer diagnosis, to perform the essential job functions of the job position. (Under the FEHA, “Essential Functions” are the fundamental job duties of the employment position. California Government Code section 12926(f).)

The employer is required to provide an employee reasonable accommodations to allow the employee to do his/her job. As part of this process, the employee must inform the employer of the restrictions/limitations and the possible reasonable accommodations that are needed. Further, an employer cannot discriminate against the employee because of the employee’s cancer diagnosis.

• Reassignment to a vacant or temporary job position. This may be appropriate when the employee can no longer perform the essential functions of the job position the employee held at the time of the cancer diagnosis, but the employee can perform the essential functions of a vacant or temporary job position that is less physically or mentally demanding.
• A schedule change, modified work schedule, or an intermittent leave of absence. This may be necessary for the employee to attend follow up or monitoring appointments or treatment with a health care provider. Some workers may require additional or longer rest breaks in order to perform their jobs. The employer may reassign some of the job tasks to a coworker.
• Adjustments to the employee’s workspace, such as ergonomic chairs or standing desks.

• When the employee informs the employer that the employee no longer requires reasonable accommodations. Until the employee is able to perform all of the previous job tasks, generally the employer must continue to provide reasonable accommodations unless doing so would create an undue hardship; or
• When the employer determines the employee no longer requires reasonable accommodations. However, before determining that an employee is fully healed and can resume all of previous job tasks, the employer must conduct an individualized assessment of the employee’s ability to perform the essential functions of the job position the employee held prior to the cancer diagnosis.

A cancer diagnosis is a highly personal issue. The employee may not relish discussing the matter with the employer. However, cancer and cancer treatment will likely make working much more difficult. In order to keep a job after a cancer diagnosis, communicating with the employer is essential. The employee should contact the manager or human resources department soon after the diagnosis. The employee may also want to discuss the diagnosis with some of their coworkers. The effects of cancer or cancer treatment may make it difficult to keep the employee’s situation entirely private. Colleagues may notice that something is different about the employee’s behavior or appearance, and it may make for an uncomfortable work environment if colleagues do not know why the employee has changed or why the employee is taking off from work frequently or receiving what they perceive as special treatment from the employer.

If you were fired after a cancer diagnosis, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment attorneys at Kokozian Law Firm, APC or Contact Us via our online form. We represent workers throughout California. We are here to help with respect, fairness, compassion, and in compliance with California law. Claims for workplace discrimination are time sensitive. California law limits the time by which you can pursue a claim. We advance all costs. No recovery, no fee.