EEOC Guidance When Employees or Job Applicants Have Cancer

cancer-389921_1280Basic human compassion and general understanding of the treatment situation of employees with cancer with guide you most of the way to dealing with the situation appropriately.  Yet the Equal Employment Opportunity Commission (EEOC) wants to be sure employers treat cancer patients in a manner consistent with the Americans with Disabilities Act (ADA).

Of course, cancer patients are not a uniform block.  For some, treatment soon after a diagnosis will render them unable to work as productively as they normally would — or at all — for a period of time.  Others will just keep chugging along as if nothing happened.

One of the biggest impediments cancer patients face is prejudice and mythology from people, including employers.  For that reason, the EEOC has laid out guidance for employers when dealing with job applicants, as well as employees.

Dealing with Job Applicants

Here are some basic pointers to help ensure job applicants are treated properly.

  • You cannot ask if they have any health conditions (including cancer) or a history of such a disease.
  • You can ask questions pertaining to job qualifications and capabilities that might be impacted by having cancer and undergoing treatment.  Examples include the ability to perform relevant physical tasks, the ability to travel or work rotating shifts.
  • These individuals are under no obligation to disclose any history of cancer “unless they will need a reasonable accommodation for the application process,” according to the EEOC.  However, a job candidate may decide to describe his or her own health situation.  This is particularly likely for those individuals who display the effects of cancer treatment (for example, hair loss), simply to “dispel any rumors or speculation.”  These individuals might also raise the topic in connection with the need for a “reasonable accommodation” as permitted under the ADA.

If a job candidate reveals that he or she has cancer, the only follow-up question you can ask about it is whether a reasonable accommodation will be required in order to perform the job.  Questions about the nature of the cancer and current treatment plans are barred.

The situation changes, however, after you have made a conditional job offer.  A prospective future employee can be asked to undergo a medical exam, assuming that requirement is applied to all similarly situated job offer recipients.

Rescinding a Job Offer

You can also request a follow-up exam for a medical assessment of the person’s ability to perform the job safely.  If that process reveals that the individual has an inability to perform the job and that no reasonable accommodation could change this fact, you can rescind the job offer.

If a current employee is having performance problems and you have a reasonable basis to believe the difficulties might be related to a medical condition such as cancer, you can ask questions.  For example, you can determine whether there are indeed medical factors behind the performance issue.  You can also ask about the employee’s treatment plan if, for example, chemo or radiation therapy is impeding his or her ability to perform up to par, or to report to work at all.  You can also ask about the cancer patient’s need for a reasonable accommodation.

And if the medical review concludes that cancer (or, more likely, cancer treatment) is the culprit behind a performance issue, and the inability to perform essential job functions cannot be resolved with reasonable accommodations, you may pull the employee off the job until his or her health condition improves sufficiently.

Exploring the Need for Accommodations

An organization called the Job Accommodation Network (JAN) offers employers a checklist of questions to ponder before making any assumptions about what you might need to do to accommodate an employee battling cancer.  Here are a few:

  • Has the employee been consulted regarding possible accommodations?
  • What limitations is the employee experiencing?
  • How do these limitations affect the individual and his or her job performance?
  • What specific job tasks are problematic as a result of these limitations?
  • What accommodations are available to reduce or eliminate these problems?
  • Are all resources being used to determine possible accommodations?

JAN also encourages employers to meet with the employee diagnosed with cancer to assess whether the accommodations are effective and to determine whether additional accommodations are needed.

The EEOC offers several examples of possible “reasonable” accommodations you might make for an employee with cancer.  Recall that whether an accommodation is reasonable or not hinges on whether it would cause an “undue hardship” on your business. That determination is made on a case by case basis.  Here’s the list:

  • Allowance of leave for doctors’ appointments and time to recuperate from treatments;
  • Periodic breaks or a private area to rest or take medication;
  • Modified work schedule or a shift change;
  • Permission to work at home;
  • Reallocation or redistribution of marginal tasks to another employee; and
  • Reassignment to a vacant position when the employee is no longer able to perform his or her current job.

Throughout this process, you need to keep the employee’s disease confidential, just as you would any other health condition.  Also, organizations like the American Cancer Society can be an excellent resource for insights on how to provide the right combination of respect and moral support that are often crucial to a cancer patient’s full recovery.

Visit the EEOC website for questions and answers about cancer in the workplace and the Americans with Disabilities Act.

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