CANCER IN THE

WORKPLACE

(EEOC’S position under the ADA)

Kenneth R. Keller

Carruthers & Roth, P.A. 235 North Edgeworth Street

Greensboro, North Carolina 27401

Americans with Disabilities Act (ADA) Applies to Employers

with 15 or more employees

Protects qualified individuals from discrimination based on disability

Prohibits retaliation

ADA “Qualified Individual” with Disability

Able to perform essential functions with or without reasonable accommodation

ADA “Disability” Physical or mental impairment that

substantially limits one or more major life activities – EEOC ex: Where condition continues for

“more than several months” – Limited ability to care for self – Reproduction – Depression – Interacting with others, eating, sleeping

ADA disability cont’d

Record of such impairment – EEOC ex: history of 30 day hospitalization, 6

month recovery period in which unable to care for self or interact with persons outside family

Regarded as having such impairment – EEOC ex: reject applicant because of

presumed adverse response to appearance from customers

– Presumed future problems from medical predisposition to cancer

Pre employment prohibited questions

Whether applicant had or has cancer Whether applicant is undergoing or has

undergone treatment Whether applicant has taken leave for

medical condition Amount of sick leave taken by applicant in

prior year

Pre employment permissible questions

Ability to perform essential functions of job – Lifting requirements – Attendance requirements – Travel requirements

If cancer disclosed, follow-up questions OK to extent necessary to discuss reasonable accommodation or direct threat

Post offer

Employer may require medical exam, if required of all applicants for position

Offer may not be withdrawn if applicant able to perform essential functions of job with or without reasonable accommodation and without creating direct threat to safety of self or others

Post employment Employer may ask concerning medical

condition or require exam when employer has legitimate reason to believe medical condition affecting work performance

Employer may require medical certification before allowing employee to work if employer has a reasonable belief that employee may not be able to perform essential functions of job or pose direct threat due to medical problems

Confidentiality Employer may disclose employee medical

information to management where necessary to provide reasonable accommodation

Employer may NOT disclose employee medical information to co-employees – not even to explain accommodation – EEOC suggests responding to inquiries by

stressing need to maintain employee privacy

Reasonable Accommodation suggested by EEOC

Leave for Dr. appointments or to recuperate from treatment

Breaks to rest or take medication Adjustments to work schedule Work at home Modify office temperature Reallocate marginal tasks Reassignment to another, but comparable job

Requesting reasonable accommodation

No “magic words” – employee simply needs to request some change to accommodate medical condition

Employer may request medical certification of disability and medical certification of ability to perform essential functions of job if not obvious – but only to extent to accomplish these goals

Undue hardship

Accommodation requires significant difficulty, expense (consider actual and

relative effect) Employer may not automatically deny a

request for leave because employee cannot furnish exact date for return

Employer may reevaluate during process

Direct threat

Significant risk of substantial harm to employee or others – cannot be avoided through reasonable accommodation

Should consider – Duration of risk – Nature and severity of potential harm – Likelihood potential harm will occur – Imminence of potential harm

Can not be remote or speculative

ADA Checklist Act applies to employer Employee disabled Employee able to perform

essential functions of job, with or without reasonable accommodation

Undue hardship Direct threat No retaliation

Workers’ Compensation

Injury by accident in course and scope of employment

Occupational disease REDA prohibits

retaliation

Retaliatory Employment Discrimination Act

(REDA) Prohibits adverse personnel action against

employee because of involvement with worker’s compensation claim

Does not prevent adverse action if employer can prove it would have taken same adverse action in the absence of comp claim

Worker’s Compensation Checklist Immediately report to carrier Specify that any light duty

temporary No retaliation Be prepared to demonstrate

employment decision made without regard to comp claim

Family Medical Leave Act (FMLA)

Applies to Employers with 50 or more employees

12 weeks unpaid job protected leave for eligible employees for covered purposes

Prohibits retaliation

FMLA Employee Eligibility

Prior service – 12 months, 1250 hours before leave

Purpose – Birth or placement of child – Care for serious health

condition of spouse, child, parent

– Unable to perform essential functions of own job due to own serious health condition

FMLA

Serious health condition: – Inpatient care – Incapacitated 3 or more days – 2 or more visits (treatment) required

by health care provider

Administering Agencies

ADA – EEOC FMLA – U.S. Department of Labor REDA – N.C. Department of Labor

Time Limitations

ADA – 180 days FMLA – 2 years REDA – 180 days

Enforcement Agency investigation Conciliation Agency suit Employee suit

– ADA – 90 days (from letter) – FMLA – 2 years (from event) – REDA – 90 days (from

letter) – Common law – 3 years (from

event)