Your Rights for Work Accommodations as an Employee With Cancer

California law protects employees with cancer when the disease, or its side effects, limits one or more of your major life activities. When cancer is diagnosed and treated early, the disease itself may not limit a major life activity. However, if the diagnosis or treatment causes you to suffer a condition such persistent depression that limits a major life activity by making it more difficult to perform than an average person, you may be protected under California law. Major life activities include caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working, and the operation of major bodily functions.

The California Fair Employment and Housing Act (FEHA) is the primary California employment-related civil rights law. It prohibits employment discrimination based on several personal traits, including physical and mental disabilities and medical conditions such as cancer. FEHA, which was first enacted in 1974, predates the federal Americans with Disabilities Act (ADA). FEHA provides protections to more individuals than the ADA. Unlike the ADA, FEHA does not limit damages recoverable in a discrimination lawsuit. Under FEHA, employers must reasonably accommodate employees with cancer.

FEHA applies to most but not all employers. Exempt from FEHA’s prohibition on discrimination are:

• Private employers that regularly employ less than five individuals, and
• Employers that are religious associations or religious corporations not organized for private profit and which are not subject to state or federal income taxes.

One aim of FEHA is to provide a pathway for individuals disabled by cancer (who might otherwise be unable to work) with opportunities to work. FEHA does this by requiring employers to:

• Provide reasonable work accommodations to employees who because of cancer cannot perform essential functions of their job, and
• Engage in a timely, good faith interactive process to determine whether a work accommodation would enable such employees to continue or resume working.

Essential job functions are fundamental duties of the job such as when the job position exists in order to perform the function in question or duties that are basic and necessary to the job position.

A work accommodation is any change or adjustment to the job or the workplace environment that enables an employee with a disabling condition to perform his or her job. FEHA requires employers to provide reasonable work accommodations to employees with cancer who are unable to perform essential functions of their job without accommodation. The employer must reasonably accommodate the employee unless the employer can show that the needed accommodation would create an undue hardship for the employer and thus is not reasonable.

No. Your employer does not have to grant a request for accommodation if it creates an undue hardship. If the work accommodation would be disruptive or very costly or fundamentally change how the employer operates, then the employer may not be obligated to provide the work accommodation as it would create an undue hardship. Whether the proposed the work accommodation would in fact create an undue hardship is determined on a case-by-case basis.

Work accommodations come in many forms. Below are just a few examples.

• A leave of absence for a finite length of time.
• Making the workplace accessible to an employee with limited mobility.
• Providing a modified or reduced work schedule.
• Providing an accessible parking space.
• Modifications to room temperatures.

Some employees with cancer need work accommodations while other employees with cancer do not need work accommodations. For purposes of work accommodations, employees with cancer fall into three broad categories.

• Employees with cancer who cannot work without work accommodations but can work if their employer provides them with a work accommodation. Employees in this category need work accommodations and generally the employer will be required to provide the work accommodation or accommodations.
• Employees with cancer who cannot work even with work accommodations. Employees in this category do not need work accommodations as there is no accommodation that will enable the employee to perform his or her job.
• Employees with cancer who do not need work accommodations to work. Employees in this category do not need work accommodations as they can perform the essential functions of their job without extra assistance from their employer.

Your employer may require you to submit documentation sufficient to show that your medical condition is disabling and explain why a work accommodation is needed. There are limits on what records your employer can request. For example, a request for your entire medical record would not be appropriate.

Coworkers may wonder why you are permitted to do things they are not permitted to do or why you are permitted not to do things they are required to do. Coworkers may confront you or your employer. Nonetheless, your employer must not disclose whether you are receiving a reasonable accommodation or that you have cancer. Your employer should strive to maintain your privacy.

The California Civil Rights Department enforces civil rights laws for California employees with cancer. If you are the victim of employment discrimination (such as your employer firing you after you requested a work accommodation) you may file an intake form with the Civil Rights Department. You may file an intake form (1) through the agency’s online Cal Civil Rights System, (2) by mail, or (3) by calling the agency. The agency will evaluate your allegations and determine whether the laws enforced by the agency pertain to your allegations. If the agency determines it has jurisdiction, it will investigate whether there is reasonable cause that a violation of the law occurred. The agency may ultimately pursue your claim or close your claim and issue a right-to-sue notice so that you can pursue your claim on your own.

You may want to skip this process and immediately contact an experienced employment attorney to go over the facts of your claim. Pursuing an employment discrimination claim is complicated. Deadlines apply to filing a discrimination complaint in a court of law. You may not be able to resolve your claim without the expertise of an attorney who practices in this area of law. An experienced employment attorney can evaluate your claim and explain what options are available to you and the range of probable outcomes.

Have you been denied reasonable accommodations or otherwise experienced discrimination due to cancer? Has your employer violated your rights in some other way? If so, 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.