A diagnosis of cancer has a devastating effect on an individual and his or her family, both at home and at work. The cancer itself can have debilitating effects on the body, including pain and exhaustion. In addition, treatments used to fight cancer, including radiation, chemo therapy and surgery are rigorous, exhausting and time consuming. Common side effects of treatment are mental fogginess or “chemo brain,” fatigue, nausea and vomiting, muscle or joint pain, anemia, sore mouth, persistent hoarseness, ulcer, difficult urine passage, diarrhea, consitipation, rash, and lymphodema. Many of these side effects make it difficult for individuals fighting cancer to attend work regularly as expected. Some individuals have to take many days off, or even an extended leave, and miss a considerable amount of work. This happens not only on treatment days, but also in between treatment days because of the debilitating physical side effects described above that make it difficult for someone fighting cancer to properly perform job functions without reasonable accommodations. Because of the physical toll on the body, certain cancers and/or cancer treatments are viewed as impairments that substantially limit one or more major life activities and therefore qualify as a disability under the American with Disabilities Act (ADA).
Many employers remain understanding during treatment, however, after treatment can stunt an individual’s [career potential] through various means such as dismissal, demotions or making it difficult for a cancer survivor to advance professionally by failing to promote. Being pushed out by adverse material changes to working conditions or being outright fired are faces of discrimination faced by individuals with cancer. Conversely, a prospective employer may view a cancer survivor or someone currently undergoing treatment as a risk for chronic health problems and be reluctant to hire them. Often, treatments for cancer affect your physical appearance, and prospective employers are alerted to an applicant’s health problems. The ADA prohibits discriminatory behavior during the hiring process. Specifically, employers cannot require medical examination prior to employment. Similarly, employers are prohibited from asking about medical procedures an applicant may have undergone, use of medication, and treatments, or what type of cancer you are currently fighting or have survived. Conversely, employers are permitted to ask if an applicant will need accommodations to complete the application, and can conduct non-medical tests to measure the applicant’s ability to perform job related functions. Once an employer has made a job offer, they can require medical examination provided all applicants are treated the same. However, it is important to know that an employer can only withdraw a job offer if post-offer examination show that employee is unable to perform the essential functions of the position.
Persons living on Long Island, in either Nassau or Suffolk counties, diagnosed with Cancer are protected by the ADA regardless of stage or severity and regardless of symptoms. Individuals with cancer who fail to receive reasonable accommodations, or who experience any type of disability discrimination in the workplace, either during the hiring process or on the job, should contact a New York disability employment attorney.