Accommodating employees with breast cancer

Public and private businesses, state and local government agencies, private entities offering public accommodations and services, transportation and utilities are required to comply with the law.

The ADA was signed into law in 1990, extending civil rights protections to individuals with physical or mental disabilities in the area of Employment (Title I).

Additionally, more than 1.3 million persons in the U. And the large majority of these persons are employed when diagnosed, undergoing treatment, and after treatment ends.

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Job applicants with cancer do not have to tell their employer about their medical history or illness unless they need a reasonable accommodation during the application process. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. The ADAAA retained the basic definition of disability, but significantly broadened its scope, by designating that “major life activities” include basic activities like walking, reading, bending and communicating, and basic bodily functions, which covers disorders of the immune system, bowel, bladder, and reproductive system.Therefore, today there are more employees with cancer and cancer survivors in the workplace than ever before. The regulations provide that job restoration (but not FMLA leave) may be denied to “key employees,” defined as salaried employees within the top ten percent of salaried employees working within a 75-mile radius of the employee’s worksite, if it can be shown that restoration would cause “substantial and grievous economic injury to the employer’s operations.” 29 CFR §825.217(a)-(c) (2009).If an employee has or has had cancer, many state and federal laws may apply, including the disability laws and the new health care reform law, “The Patient Protection and Affordable Care Act” (PPACA). Therefore, if an employee has cancer, and gets swept into a RIF, there are legal considerations. In order to deny job restoration on key employee grounds, however, the employer must notify the employee in writing of key employee status prior to commencement of the FMLA leave, and warn the employee of potential denial of reinstatement and loss of health benefits, if the employer should determine that substantial and grievous economic injury to the employer’s operations will result. Therefore, a “key employee” on FMLA leave may be swept into a RIF under the “key employee” exception, but only if proper written notice was provided in advance of FMLA leave.For more information see the newly released Breast Cancer Legal Resources Guide at: What protections does the Americans with Disabilities Act provide in regards to employment?The Americans with Disabilities Act (ADA) is the most comprehensive civil rights legislation adopted to prohibit discrimination against people with disabilities.An employee with cancer may only be barred from a job if there is a “direct threat” or significant risk of substantial harm to himself or others which may not be alleviated through reasonable accommodation. The ADAAA has broadened the definition of “regarded as” having an impairment, to an “actual or perceived physical or mental impairment” regardless of whether or not such impairment substantially limits a major life activity.

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