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. However, you may be required to reveal some information about your medical condition in order to access protections under the following laws:
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, and in the last 12 months worked at least 1,250 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 share 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 certification form.
The Americans with Disabilities Act (ADA) can be very helpful to job holders or candidates who are coping with cancer. However, in order to access protections under the ADA, individuals must be qualified for the job, and the job must be with either a private firm that has 15 or more employees or a local or state government employer. In addition, the employee must have all the relevant trainings, certifications, etc. required to perform their job successfully. They must also have a disability, which is defined under the ADA as “a physical or mental impairment that substantially limits a ‘major life activity.’” With cancer patients, often it is not the disease itself that creates the disability but, rather, the side effects of the treatment (e.g., nausea, cognitive difficulties, fatigue, neuropathy and/or depression).
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 may not be necessary to disclose the details of your diagnosis, but you will likely have to provide enough information to show that you have a serious medical condition 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 about your health history 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. 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, eligible employees may take up to 12 weeks of leave time to deal with their own serious medical condition, or to act as a caregiver for a seriously ill child, parent, or spouse. This leave can be taken all at once, or intermittently as needed (e.g., you may only need to take every Friday off for treatment). 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 comparable in terms of pay, benefits, and other terms and conditions of employment. While you are out on FMLA leave, employers are required to continue providing the same health insurance benefits as if you were still working (e.g., they cannot force you to elect COBRA while out on leave).
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. For details on whether such options are offered at your place of work or if there are additional leave policies, consult your employee manual or, if your organization has a human resources department, an HR representative.
If I can’t return to work after my leave time runs out, what are my options?
After FMLA leave expires, if you are unable to return to work your employer does not have to continue to hold your position for you and can terminate you. However, 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 making this request by asking for a definite period of additional leave time rather 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 federal 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.
Please note that this information is designed to provide general information on the topics presented. It is provided with the understanding that the expert is not engaged in rendering any legal or professional services in the information provided. The information provided should not be used as a substitute for professional services.