Your Rights as an Employee Who Has Survived Cancer

The California Fair Employment and Housing Act (FEHA) [California Government Code sections 12900 – 12996] is California’s primary anti-discrimination law in the context of housing and employment. FEHA prohibits employment discrimination, harassment, and retaliation based on designated personal characteristics, traits, and conditions. One such protected personal characteristic, trait, or condition is a Medical Condition. FEHA defines a Medical Condition as any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. (California Code of Regulations, title 2, section 11065.)

According to scientific literature included in the database of the National Library for Medicine, roughly 17 million cancer survivors live in the United States. About 40% of survivors experience long-term physical, cognitive, or psychological effects due to the disease or treatment of the disease. Common long-term effects include anxiety, depression, withdrawal from activities and social participation, cognitive changes, fatigue, pain, disturbed sleep, decreased balance, decreased mobility, decreased range of motion, and neuropathy.

Many cancer survivors resume working when they feel well enough to do so. Others continue to work while undergoing treatment. Whether a person can continue to work while undergoing cancer treatment depends on factors such as the type of treatment involved, one’s overall health, the stage of cancer, and the type of work the person performs. Financial and emotional incentives encourage cancer survivors who are able to work to do so. Employment provides not only income and financial stability, but other important benefits such as health insurance, emotional support from coworkers, a sense of productivity and normalcy, and a fostering of an optimistic attitude that life goes on.

All persons should have the right and opportunity to obtain and hold employment without discrimination. Anti-discrimination laws such as FEHA prohibit employers from discriminating against you because you are a cancer survivor in compensation or in terms, conditions or privileges of employment. Your employer should not treat you differently from other workers in the workplace because of your history of cancer. Unfortunately, cancer survivors sometimes encounter barriers to keeping a job. Employers treat cancer survivors unfairly, based on prejudices, resentment, or fear. Cancer survivors are wrongfully terminated, passed over for a deserved promotion, demoted without a clear reason, given undesirable transfers, or face hostility from coworkers or supervisors.

FEHA protects most cancer survivors from discrimination (and provides remedies if you are discriminated against) so long as:

• You are qualified for your job.
• You can perform your job without creating a direct threat to the health or safety of you or others in the workplace either without accommodation or with a reasonable accommodation.
• At some point:
  • your cancer limited your ability (made it more difficult than it would be for an average unimpaired person) to perform a major life activity (such as your ability to perform your job or be promoted), or
  • your employer mistakenly or erroneously believed that your cancer limited your ability to perform a major life activity.

Employers subject to FEHA include:

• Private employers with five or more employees (some religious organizations are exempt), and
• Public employers such as the State of California and its political and civil subdivisions and cities.

Under federal and California anti-discrimination laws, employers and prospective employers have a right to know whether you can perform a job at the time that you apply for the job or upon you returning to your job from a medical leave of absence. Unless you have a visible disability and your employer could reasonably believe that it might affect your ability to perform your job, your employer generally may not ask about your history of cancer. Your employer may not request diagnosis information as to your cancer to determine whether you are disabled. Your employer may ask for information regarding your functional limitations. Functional limitations affect your ability to perform an action or a set of physical or mental actions because of a physical or emotional restriction caused by your cancer or cancer treatment.

Finding an appropriate accommodation is an individualized process that will depend on the limitations you have as a cancer survivor. Speak with your employer about your situation and what you need. Perhaps modifying the furniture in your office and adjusting the room temperature would enable you to perform your job. A less challenging part-time or modified work schedule might be appropriate. Taking more frequent breaks might be the answer. Reassignment to a vacant and less physically or mentally demanding position might be the solution, even if it pays less than your previous position. Working from home as opposed to the office is another example. This is only a sampling of potential accommodations. An employer is only obligated to provide a reasonable accommodation. An accommodation is not reasonable if it would impose an undue hardship on the employer. Determining whether a proposed accommodation creates an undue hardship is based on several factors, including the overall resources of your employer and the number of employees your employer has in comparison to the overall size of the business.

An employer identifies potential reasonable accommodations through a timely, good faith interactive process. In most cases, the process should be conducted via direct communication between you and your employer. You must first request a reasonable accommodation unless your employer becomes aware of your need for accommodation through a third party or by observation. If your employer identifies equivalent potential accommodations, though you may express your preference, your employer has the option of choosing the accommodation that is less expensive or easier to provide. Your employer must separate medical information and records obtained as part of the interactive process from your personnel file and keep such data confidential. Your employer, however, may inform supervisors of restrictions on your duties and the accommodations your require.

If you experience discrimination due to cancer or your employer otherwise violates your rights, contact the experienced employment attorneys at Kokozian Law Firm, APC at 323-857-5900, or Contact us via our online form. Our firm specializes in representing California workers. Ask about our free initial consultation. We advance all costs. No recovery, no fee.