Employee Rights of Cancer Survivors

by Dana Hess, Civil Rights Investigator, Washington State Human Rights Commission

One in three persons will be diagnosed with cancer in his or her lifetime. More than 10 million people in the United States are living with cancer. Additionally, more than 1.3 million persons in the U.S. will be diagnosed with cancer this year. Sixty-five percent (65%) of adults diagnosed with cancer today will be alive five years from now. And the large majority of these persons are employed when diagnosed, undergoing treatment, and after treatment ends.

As employees, a person with cancer (or who had cancer) is, in most cases, considered "disabled" under federal and Washington law and is protected by the American with Disabilities Act (ADA) and the Washington Law Against Discrimination (WLAD). An employer must accommodate an employee's condition when the impairment is "known or shown through an interactive process to exist in fact," and the impairment has a substantially limiting effect on one of the following:

• the individual's ability to perform his or her job;
• the individual's ability to apply or be considered for a job; or
• the individual's access to equal benefits, privileges, or terms or conditions of employment; or
• the employee puts the employer on notice of the impairment and medical documentation establishes a "reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect."

The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles or they may be procedures or rules (such as rules concerning when work is performed or when breaks are taken). Reasonable accommodation removes workplace barriers for individuals with disabilities.

For more information see the newly released Breast Cancer Legal Resources Guide at: http://www.wsba.org.