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What, if anything, am I obligated to disclose regarding my diagnosis to my employer?
Generally, under the law you do not need to disclose anything about your diagnosis to a current or potential employer. There are, however, a couple of situations when you are required to reveal some information:
The Family and Medical Leave Act (FMLA) requires employers with 50 or more employees in a 75-mile radius to give 12 weeks of unpaid, but job and benefit protected leave to employees who have worked for them at least 12 months, for 1250 hours. If you are requesting leave through the FMLA, you will have to disclose that you are unable to work due to a serious medical condition. You do not, however, have to disclose your specific diagnosis. If you only want to give the minimum information required with an employer, make sure to share that preference with your physician or health care provider who, trying to be helpful, might share more than necessary on a form requested by your employer.
The Americans with Disabilities Act (ADA) prohibits federal, state, and private employers with 15 or more employees from discriminating in any employment practices against qualified employees with disabilities. Cancer can be considered a disability under the ADA, although it is determined on a case-by-case basis. The ADA requires employers to provide reasonable accommodations to eligible employees. A reasonable accommodation is any change or adjustment in the work environment, or to the way things are customarily done, that enables an individual with a disability to enjoy equal benefit and employment opportunities. If you are requesting a reasonable accommodation, then you will have to show medical evidence that you have a disability (to be covered under the ADA) that requires a reasonable accommodation (it is necessary to perform the essential functions of your job). It is not necessary to disclose the details of your diagnosis, only information showing that you have a serious medical illness that qualifies as a disability.
When looking for a new job, it is natural to be concerned about what an employer might ask. Knowing what they are prohibited from asking is therefore important in quelling some of those fears. During the application process an employer may not ask if you have a disability or about the nature or the severity of a disability (even if there is a visible sign of a disability).
Employers may, however, ask about your ability to perform job-related functions if the questions are not designed to elicit disability-related information. For example, a potential employer may not ask you if you took FMLA leave or sick time at a previous job, or how much time you took off. If you choose to disclose that you had or have a disability, potential employers can only ask whether you will need an accommodation to perform the essential functions of the job.
How do I take time off work and not lose my job?
Under the FMLA, you are may take up to 12 weeks of leave time (see above for which employers are obligated to give FMLA leave). This leave can be taken all at once, or intermittently. Under either option, employers have to protect your job and benefits for the time you are on FMLA leave—meaning that at the end of the leave period they have to give you the same or an equivalent job in the company. If the job is an equivalent one and not the same one, it must be equivalent in terms of pay, benefits, and other terms and conditions of employment.
Employers often have short-term and long-term disability benefits that might offer additional leave time, or the same amount of leave time but with some subsidized pay. Consult your human resources representative and your employee manual for details on whether this is offered at your place of work or if there are additional leave policies.
If I can’t return to work after my leave time runs out, what are my options?
After FMLA leave expires, if you cannot return to work the employer does not have to continue to hold your position for you and can terminate you. If you expect that you might be able to return to work soon after the FMLA leave runs out, consider asking for extended leave as a form of reasonable accommodation under the ADA. You are more likely to be successful in asking for a definite period of additional leave time than an indefinite one, since an indefinite period of leave time could cause an undue hardship on an employer.
If you expect that you will be unable to work for a year or more, consider applying for long-term disability benefits through the Social Security Administration (SSA). There are two forms of SSA long-term disability benefits: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Eligibility for SSDI is based on work history and earnings, while eligibility for SSI is based on income and resources.
If you also have a long-term disability insurance policy through your employer, check to see if it requires you to simultaneously apply for SSA benefits - often it does, to offset the cost to the company of how much they are paying out. Some states also offer state disability insurance options, which often do not require you to be unable to work for as long as the one-year requirement of the SSA.
The Cancer Legal Resource Center (CLRC), a 14 year old program of the Disability Rights Legal Center, offers free information and resources on cancer related legal issues to patients, caregivers, healthcare professionals and employers. The CLRC provided this overview of the employment-related legal questions that often come up for patients, if you have specific questions about your legal rights in the workplace please contact the Cancer Legal Resource Center directly at 1-866-THE-CLRC or email@example.com for more information.
This material is designed to provide general information on the topics presented. It is provided with the understanding that Cancer and Careers and the Cancer Legal Resource Center (CLRC) are not engaged in rendering any legal or professional services by its publication or distribution. Although this material was reviewed by a professional, it should not be used as a substitute for professional services. Resources and referrals are provided solely for information and convenience.