Legal Overview: ADA and FMLA

There are federal and state laws that give an employee with cancer the right to take a leave of absence and have reasonable accommodation.  These laws also prohibit discrimination against him or her. A good place to start is with your Human Resources department.  Ask HR what information about relevant laws is available for both the employee and for you.  You and the employee can also find information about these laws through the links given below.

Hereﾒs a summary of the two most relevant pieces of federal legislation, the Americans with Disabilities Act and the Family and Medical Leave Act. You will also want to check with Human Resources to see if there is relevant state legislation.

The Americans with Disabilities Act (ADA):

• Covers employers with 15 or more employees
• Includes cancer in its definition of ﾓdisabilityﾔ
• Prohibits employers from discriminating against a person with cancer or with a history of cancer
• Requires ﾓreasonable workplace accommodationﾔ of people with cancer
• Covers a ﾓqualifiedﾔ person, defined as one who has the experience and training to be able to ﾓperform the essential functionsﾔ of the job.
• Requires an employer to provide the same compensation and benefits to someone with cancer as it would provides to an employee without cancer.
• Will be most useful for a person with cancer who is going through treatment and needs an accommodation like working at home.
• Covers an employee with cancer only if she decides to disclose that she has cancer.
  Protects caregivers as well as people with cancer.

Here are some other helpful resources about the ADA:

U.S. Department of Justice (http://www.usdoj.gov/crt/ada/business.htm)
Equal Employment Opportunity Commission(http://www.eeoc.gov/facts/cancer.html)
American Cancer Society (http://www.cancer.org/docroot/MIT/mit_3_1_2.asp)

The Family and Medical Leave Act of 1993 (FMLA):

• Covers employers with 50 or more employees
• Includes cancer as a ﾓserious health conditionﾔ
• States that ﾓcovered employersﾔ must grant an ﾓeligible employeeﾔ up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following:
  • birth and care of an employeeﾒs newborn child.
  • placement of a child with the employee for adoption or foster care.
  • care of an immediate family member (spouse, child or parent) with a serious health condition.
  • medical leave when the employee is unable to work because of a serious health condition.
• Protects an employeeﾒs job while the employee is taking time off due to illness or caring for an ill dependent.
• Requires that health insurance continue under the same conditions as if the employee were still working.  This means that if the employee pays part of the premium while at work she will pay part of it while on leave.
• Permits an employee to take the leave in blocks or on a reduced schedule if the manager agrees.
• Allows an employee to use accrued paid sick leave, vacation or Paid Time Off (PTO) during the 12-week period that would otherwise be unpaid.
• Will be most useful for a person with cancer who might feel sick for a few days or a week every month because of chemotherapy treatments.

Here are helpful resources about the FMLA:

U.S. Department of Justice (www.dol.gov/esa/whd/fmla/)
Patient Advocate Foundation (http://www.patientadvocate.org/resources.php?p=128)

Here is a resource designed for employees but helpful also for managers, it is part of the cancerandcareers website for employees: http://www.cancerandcareers.org/paperwork/item?item_id=3191

Here is a resource that explains the interaction between the ADA and the FMLA
The U.S. Equal Employment Opportunity Commission:   http://www.eeoc.gov/policy/docs/fmlaada.html