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ployee with cancer (or a history of cancer) because of concerns about increased costs due to insurance expenses and lost productivity or because of concerns about the psychological impact of a survivors’ cancer history on other employees. Some employers may fail to revise their personnel policies to comply with new laws, and even among those with updated policies, employers may not train their personnel managers properly to comply with these laws. The interpretation of laws designed to prohibit discriminatory practices is sometimes unclear and is being resolved in the courts. Some employers and co-workers treat cancer survivors differently from other workers, in part, because they have misconceptions about survivors’ abilities to work during and after cancer treatment (Working Woman/ Amgen, 1996; Yankelovich, 1992).
Cancer Survivors’ Current Employment Rights
Although cancer survivors do not have an unqualified right to obtain and retain employment, they do have the right to some freedom from discrimination and to be treated according to their individual abilities. Three federal laws—the Americans with Disabilities Act, the Family and Medical Leave Act, and the Employee Retirement and Income Security Act—provide cancer survivors with some protection against employment discrimination.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. 12101 et seq.) prohibits some types of job discrimination by employers, employment agencies, and labor unions against people who have or have had cancer. All private employers with 15 or more employees, state and local governments, the legislative branch of the federal government, employment agencies, and labor unions are covered by the ADA.
A “qualified individual with a disability” is protected by the ADA if he or she can perform the “essential functions” of the job. The ADA prohibits employment discrimination against individuals with a “disability,” a “record” of a “disability,” or who are “regarded” as having a “disability.” A “disability” is a major health “impairment” that substantially limits the ability to do everyday activities, such as drive a car or go to work.
Cancer is an “impairment” as defined by the law. In most circumstances, cancer survivors, regardless of whether they are in treatment, in remission, or cured, are protected as persons with a disability because their cancer substantially limited a major life activity. Indeed, many federal courts and the Equal Employment Opportunities Commission (EEOC) consider cancer in most circumstances to be a disability under the ADA