- Americans with Disabilities Act
- Does the ADA protect me even when I am looking for a job?
- Illinois Human Rights Act
- Taking Time Off Work
- Are all employers bound by the FMLA?
- Are all employees eligible use the FMLA?
- Are there different ways to use the 12 weeks of medical leave?
- What does it mean that my job and benefits are protected?
- What if I need more than 12 weeks of leave?
- What do I do if I think my rights under the FMLA have been violated?
- What information is my employer entitled to about my medical condition when I am asking to take time off?
- What do I do if I think my rights have been violated?
Whether you are working through treatment, taking time off from work for treatment, are looking to return to work, or have completed treatment, there are laws that protect employees in the workplace.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA)1 is a federal law, which was passed in 1990, that prohibits discrimination against qualified employees with disabilities.
To use the ADA’s protections, you must be a qualified individual, which means that you can perform the essential functions of the job with or without a reasonable accommodation. According to the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing the ADA, you should look at the following factors to determine if a job function is essential:
- The reason the position exists is to perform that function.
- How many other employees are available to perform the function or among whom the performance of the function can be distributed?
- The degree of expertise or skill required to perform the function.
- Be a qualified individual.
- Work for private employer with fifteen or more employees or state or local government.
- Have a disability.
You also must work for a private employer with fifteen or more employees (or a state or local government of any size) and have a disability as defined by the ADA.
Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity. When dealing with cancer, oftentimes it is not the cancer itself that creates the disability but rather the side effects of the treatment (e.g., nausea, cognitive difficulties, fatigue, neuropathy, and/or depression).
A major life activity is anything that the average person in the general population can perform with little or no difficulty. For example, walking, talking, breathing, eating, sleeping, thinking, communicating, and operations of major bodily functions are all considered major life activities.
Under the ADA’s definition of a disability, the limitation to a major life activity must be substantial. To determine if your limitation is substantial, consider the following:
- The nature and the severity of the disability
- The duration (or expected duration) of the disability
- The permanent or long-term impact of the disability
The ADA applies to all phases of employment, including hiring, firing, applications, leave, reinstatement, promotions, testing and trainings, compensation, and benefits2. This means that both job applicants and employees are protected.
After you have determined that you are protected under the ADA, there are four ways to use those protections:
- You currently have a physical or mental impairment that substantially limits a major life activity. For example, you are currently going through chemotherapy after your mastectomy and are suffering from extreme nausea that makes getting through a workday without vomiting impossible.
- You have a history of having a disability. For example, you are a cancer survivor with no current limitations, but a potential employer is refusing to hire you because the employer is afraid you will have a reoccurrence.
- You are regarded as having a disability. For example, you are going through treatment but are not experiencing any major side effects except hair loss, but your employer is treating you differently because the employer perceives that you to have a disability.
- You have an association with a person with a disability. For example, you are the primary caregiver to your mother who is battling breast cancer, and your employer is refusing to promote you because of your caregiver role.
Four Ways to Use ADA
- • Currently
- • History
- • Regarded as
- • Association with
In all of these circumstances, the ADA protects you against discrimination in the workplace.
If you currently have a disability under the ADA or a history of having a disability, in addition to being protected from discrimination, you also are entitled to a reasonable accommodation. A reasonable accommodation is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” Some practical examples of reasonable accommodations include the following:
- Changing your work schedule (e.g., working from home, part or full time; flexible scheduling, schedule breaks, or extended leave)
- Using technology (e.g., a tape recorder or a smartphone)
- Changing your physical work environment (e.g., moving your desk location closer to the elevator)
- Changing workplace policy (e.g., allowing additional rest periods)
- Shifting job responsibilities
- Changing your job (e.g., moving to a vacant position)
Reasonable accommodations will depend on your disability and your job. If you are unsure of what reasonable accommodations may work for your situation, contact the Job Accommodation Network (JAN), which is a program of the U.S. Department of Labor. JAN also has a Searchable Online Accommodation Resource (SOAR) system that allows people to explore various accommodation options for people with different types of medical conditions in particular workplace settings.
An employer is required to provide reasonable accommodations for a person with a disability unless it would cause the employer an undue hardship. To be considered an undue hardship on the employer, the accommodation must require significant difficulty or expense for the employer.
You may ask your supervisor, another superior, or a human resources representative for a reasonable accommodation. You do not have to specifically mention the ADA or use the words reasonable accommodation. In addition, the request does not need to be in writing, but it is a good idea to document in writing any agreed-on reasonable accommodations. Although you must say that you are requesting this change in work environment/policy/schedule as a result of a medical condition, you do not need to disclose the exact nature of that condition (e.g., you don’t necessarily have to tell your employer that you have been diagnosed with cancer) if you can provide sufficient information that describes the nature and the duration of the impairment, the activity the impairment limits, and why you need a reasonable accommodation. If you are concerned about disclosing your diagnosis, talk with your health-care team when you ask them to complete your medical certification paperwork for your employer. Tell them that you do not want your diagnosis included in the description of why you need an accommodation. Sometimes, information about symptoms you are experiencing is enough if it shows why you need the accommodation you are requesting.
You can request a reasonable accommodation during the application process, when looking for a new job, or at any point during your employment. However, it may be in your best interests to ask for a reasonable accommodation as soon as a problem or an issue becomes known—before your work performance suffers.
If you have questions about the ADA or reasonable accommodations, see www.eeoc.gov/policy/ada.html.
Does the ADA protect me even when I am looking for a job?
Yes! When you are searching for a job, generally you do not need to disclose that you have cancer, a medical condition, or a need for a reasonable accommodation on an application or in an interview. However, if you need an accommodation for the interview itself, you will need to disclose that you have a medical condition to justify why you need the accommodation.
During the application process, before a job offer is made, an employer may not ask about your health, ask about the nature of the disability, or require that you take a medical exam. This prohibition includes questions about how much sick leave you have taken in the past or if you have ever taken a Family and Medical Leave Act (FMLA) leave. Employers are allowed to ask only if you are able to perform the essential functions of the job and how you will perform the essential functions of the job. If you have questions about searching for a job after a cancer diagnosis visit Cancer and Careers. Cancer and Careers has job searching tools, résumé reviewers, job coaches, and a plethora of other services to aid survivors in all aspects of balancing work and cancer.
After you have been offered a job, an employer does have the right to make the offer conditional based on the results of a medical exam, only if every other employee in the same job category is required to take the same exam. If you are not hired because of the results of that exam, the employer must be able to demonstrate all of the following:
- Not hiring you is consistent with business necessity (e.g., you would pose a direct threat or a significant risk of substantial harm to the health or safety of yourself or others).
- That threat cannot be eliminated or reduced significantly through reasonable accommodation(s).
All of your medical information, including any requests for reasonable accommodations, must be kept confidential and in a separate file from your personal file. Only the following people may have access to your personal medical information:
- Insurance carriers (health, life, and disability)
- Workers’ compensation offices
- Managers or supervisors (but only the information necessary to determine or implement a reasonable accommodation)
- First aid and safety personnel (but only if information is necessary in emergency situations)
For information about how the ADA and the FMLA can protect you in the workplace, click here.
Illinois Human Rights Act
The Illinois Human Rights Act (IHRA)3 is the state version of the ADA. It prohibits discrimination in all employment practices against qualified individuals with disabilities who can perform the essential functions of the job, with or without reasonable accommodations. The IHRA applies to all private employers with one or more employees and state or local governments of any size. Therefore, individuals who work for small businesses with less than fifteen employees, who are not covered under the ADA, are protected by the IHRA. It is important to know which law you are protected under for the complaint process (see the following section). Under the IHRA, the definition of a disability is a “determinable physical or mental characteristic of a person which may result from disease, injury, congenital condition of birth or a function or disorder.” The requirements for reasonable accommodations are the same as under the ADA.
Taking Time Off Work
Whether you are the one who has been diagnosed with cancer or you are caring for a loved one, you may need to take time off work. The Family and Medical Leave Act (FMLA) is a federal law that may provide you with the right to take a total of twelve weeks of unpaid but job- and benefit-protected leave per year to deal with your own serious medical condition or to take care of a child, parent, or spouse with a serious medical condition.4 Twelve weeks is the minimum amount of leave that covered employers must provide; however, many employers are more generous in their leave policies. It may be beneficial for you to check your employee contract, employee manual, or union contract or talk to your human resources representative about your employer’s specific leave policies.
Are all employers bound by the FMLA?
No. To be eligible to take FMLA leave, you must work for a public employer of any size (e.g., federal, state, and local governments) or a private employer with fifty or more employees who work within a seventy-five-mile radius of your work site.
You can determine if your employer is eligible by adding up the number of employees that the employer had during twenty or more calendar workweeks in either the current or the preceding calendar year. The twenty workweeks do not have to be consecutive. Any employee whose name appears on the employer’s payroll will be considered employed each working day of the calendar week and must be counted even if no compensation was received for the week. If you work in a branch of a larger company (e.g., chain restaurant, retail store, or bank branch), you may count any employee that works for your company within seventy-five miles of your work site toward the fifty-employee requirement. The seventy-five miles is determined by “using surface transportation over public streets, roads, highways, and waterways, by the shortest route from the facility where the employee requesting leave is employed.”5
Are all employees eligible use the FMLA?
No. In addition to working for a large enough employer, you must have worked for your employer long enough. The FMLA requires that you work for your employer for at least twelve months and at least 1,250 hours (slightly more than part time). The twelve months do not need to be consecutive, only cumulative. The FMLA allows you to go back seven years to determine your work history. This means that as long as you have worked for that employer for at least twelve months in the last seven years and have worked at least 1,250 hours during the last twelve months that you worked for the employer, then you are eligible to take FMLA leave.
Here are some different ways that you can meet the 1,250-hour requirement:
- Work 24 hours per week for 52 weeks in a row
- Work 40 hours per week for 31 weeks in a year
- Work more than 104 hours each month for12 months in a row
- Employer has fifty or more employees within seventy-five miles of your work site.
- Employee has worked a total of twelve months for the employer and at least 1,250 hours in twelve months before the leave.
If you are unsure of your employer’s or your eligibility under the FMLA, you may want to use the U.S. Department of Labor’s online FMLA Advisor at www.dol.gov/elaws/fmla.htm.
Are there different ways to use the 12 weeks of medical leave?
If you work for a covered employer and you are an eligible employee, the FMLA entitles you to take up to twelve weeks of unpaid leave per year to deal with your own serious medical condition or to care for a seriously ill child, parent, or spouse. Leave may be taken all at once or in shorter periods of time if it is medically necessary. For example, you are able to take twelve weeks off in a row to recover from surgery or take every Friday off for your chemotherapy appointments.
You are entitled to twelve weeks of leave per twelve-month period. There are different ways to calculate the twelve-month period; however, the employer must choose one of the following ways and apply it to all employees. The four ways to calculate the twelve-month period are as follows:
- A calendar year
- The twelve-month period based on the date when an employee first begins FMLA leave
- The twelve-month period measured backward from the date an employee uses the FMLA leave
- Any other fixed twelve-month period (e.g., fiscal year or employee hiring date)
If the employer does not specify one of these four options, then the option that is most favorable to the employee is automatically applied.
If you are a part-time employee but otherwise are eligible to take FMLA leave, your amount of leave is prorated. For example, if you work twenty-four hours a week and take six hours of leave, you will be considered to have used one fourth of a week of leave.
What does it mean that my job and benefits are protected?
The FMLA leave is job protected, meaning that when you return from leave, generally you must be reinstated into the same or equivalent position that you had when you took time off. An equivalent position is one with equivalent pay, benefits, responsibilities, and other conditions of employment. There are a few exceptions when an employer will not be required to reinstate you:
- If you provide your employer with notice that you do not plan to return to work
- If your position was eliminated while you were on leave
- If you would have been terminated for a legitimate reason (e.g., misconduct)
- If you were a highly paid key employee and your leave would cause substantial economic injury to the business
- If you are unable to return to work after exhausting your allotted FMLA leave
The FMLA also protects your health insurance benefits. If your employer pays for a portion or all of your health insurance coverage, the employer must continue to do so while you are on leave (i.e., it cannot force you to elect COBRA during your FMLA leave). However, that rule applies only to health insurance, not disability or life insurance or any other employer-sponsored benefit. After you return from leave, all benefits that you received prior to your leave must be reinstated.
An employer is not permitted to retaliate or discriminate against you because you took FMLA leave.
What counts as a “Serious Medical Condition”?
FMLA leave is available to take care of
- Your own serious health condition
- To take care of a child, parent, or spouse with a serious health condition
- To care for a newborn child following birth; or for the adoption or fostering of a child.
A serious health condition is an “illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health-care provider.” You can satisfy the continuing treatment test by showing the following:
- A period of incapacity of more than three consecutive, full calendar days plus treatment by a health-care provider twice or once with a continuing regimen of treatment
- Any period of incapacity related to pregnancy or for prenatal care
- Any period of incapacity or treatment for a chronic serious health condition
- A period of incapacity for permanent or long-term conditions for which treatment may not be effective
- Any period of incapacity to receive and/or recover from multiple treatments or surgery
The regulations specify that if an employee asserts a serious health condition under the requirement of a “period of incapacity of more than three consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same condition,” the employee’s first treatment visit (or only visit if coupled with a regimen of continuing treatment) must take place within seven days of the first day of incapacity. Cancer typically qualifies as a serious health condition under the FMLA.
The FMLA also allows you to take leave for chronic serious health conditions. A chronic serious health condition is one that
- Requires periodic visits for treatment by a health-care provider or nurse (e.g., two or more times a year).
- Continues across an extended period of time.
- May cause episodic rather than continuing periods of incapacity.
What if I need more than 12 weeks of leave?
You may be able to use the FMLA and the ADA together to receive additional leave time as a reasonable accommodation. For example, if you have taken your 12 weeks of FMLA leave, you may ask your employer for some additional time off as a reasonable accommodation. Generally, the employer must grant this additional leave if it is for a definite period of time (e.g., two weeks) and it is not an undue burden on the employer. If you are requesting additional leave as a reasonable accommodation, you will need to follow the steps and suggestions outlined in the section on ADA reasonable accommodations.
What do I do if I think my rights under the FMLA have been violated?
The federal agency responsible for enforcing the FMLA is the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD). If you feel that your rights under the FMLA have been violated, you may file a complaint with the DOL; however, unlike with the ADA, it is not necessary to do so before bringing a lawsuit in federal court.
For more information about filing a claim visit the DOL-WHD’s website or contact the Chicago District Office of the DOL-WHD:
U.S. Department of Labor
Chicago District Office
230 S. Dearborn St., Room 412
Chicago, IL 60604-1591
What information is my employer entitled to about my medical condition when I am asking to take time off?
Generally, you are not required to share information about your medical condition with an employer or a potential employer. However, if you ask for a reasonable accommodation or FMLA leave, your employer has the right to ask you for medical certification that you do indeed have a disability under the ADA (or state fair employment law) or a serious medical condition under the FMLA. It is important to communicate with your health-care team if you wish to keep your exact diagnosis confidential from your employer because medical certification forms may request information that will disclose your diagnosis. For example, there may be a space for your doctor to write in your diagnosis or it may just have a space for your doctor’s medical specialty. Please keep in mind that employers are not permitted to ask for copies of your medical records or put your medical information in your employee file.
There may be limited instances when your employer may contact your health-care provider. Under the FMLA, your employer may contact your health-care provider only to authenticate and clarify the information provided on a medical certification form. Authentication means that the employer can verify that your health-care provider actually signed the paperwork and that it was not forged. Clarification means that the employer can ask questions of the health-care provider because it cannot read the handwriting or there is something else confusing about the medical certification form. Employers cannot ask for additional information from your health-care provider. Under the ADA, your employer may contact your health-care provider but only with your express permission. Triage Cancer has created a medical certification chart that outlines what is and is not permissible for medical certification forms under the ADA and the FMLA.
What do I do if I think my rights have been violated?
If you feel that you have been discriminated against because of your cancer diagnosis or other disability, then you may consider filing a complaint. The first step is to determine if your claim is covered by the IHRA and/or the ADA. If it is covered by the IHRA alone, or both the IHRA and the ADA, you must file a complaint with the state of Illinois first. Complete the Illinois Employment Complaint Information Sheet (available in the appendix or online at www2.illinois.gov/dhr/FilingaCharge/Documents/CIS_Empl.pdf). Submit the completed information sheet to the Illinois Department of Human Rights (IDHR). If the IDHR determines that your allegations are covered under the IHRA, it will draft and send you a “charge” for you to sign and return to them. The following flowchart from the IDHR outlines the process of a discrimination complaint in Illinois.
If your claim also is covered under the ADA and you wish to file both complaints, you must use the administrative complaint procedures established by the Equal Employment Opportunity Commission (EEOC). You also may contact the EEOC and file a charge of discrimination at:
Equal Employment Opportunity Commission
Chicago District Office
500 W. Madison St., Suite 2000
Chicago, IL 60661
Although the office accepts walk-ins, if you are planning to file a charge of discrimination, it is suggested that you call (800) 669-4000 to schedule an interview between 8:30 a.m. and 3:30 p.m. on Monday through Friday. If you have a disability that makes it difficult to attend an in-person interview, you may request a telephone interview.
The EEOC may suggest that you complete mediation before launching an official investigation. Both you and your employer must agree to mediation, which is when an independent third party attempts to resolve the issues. Participating in the EEOC’s mediation program is free, voluntary, and confidential. There may be several benefits to mediation, including avoiding a potentially costly lawsuit and perhaps even retaining your employment. If you are unable to resolve the issues through mediation, the EEOC will investigate your charge of discrimination to determine if there is reasonable cause to believe that you were discriminated against. If reasonable cause is found, the EEOC will attempt to resolve the issue with your employer. If the EEOC is unable to resolve the issue, it will file suit against your employer on your behalf. If, however, the EEOC does not find discrimination or if the EEOC decides not to pursue the suit, it will issue you a right-to-sue letter. This letter will allow you to sue your employer in federal court.
If you choose to pursue a lawsuit against your employer in federal court, you may want to consider hiring a lawyer who specializes in employment matters. If you would like to hire an attorney, one place to start is through the appropriate lawyer referral service in your county or contact the National Cancer Legal Services Network.
There are some very important deadlines to keep in mind if you are considering filing a discrimination claim under the Illinois Fair Employment law or the ADA, which are presented in Table 5.
Table 5. Claim Deadlines
|Filing your Illinois Employment Complaint Information Sheet (available in the appendix)||180 days after date discrimination occurred||Illinois Department of Human Rights Chicago Office
100 W. Randolph St., 10th Floor, Intake Unit
Chicago, IL 60601
|Filing your charge of discrimination with the EEOC||180 days after date discrimination occurred||Equal Employment Opportunity Commission
500 W. Madison St., Suite 2000
Chicago, IL 60661
|Filing claim in court||90 days after receiving right-to-sue letter||Hire a lawyer:
1 42 U.S.C. § 12101, et seq.
2 42 U.S.C. §12112(a)
3 775 ILSC 5/2
4 The Family and Medical Leave Act of 1993, 29 U.S.C. §2601
5 29 C.F.R. §825.111(b)