October 2013 Ask the Expert: Workplace Issues
A breast cancer diagnosis can mean many things for your career and basic workday. During the month of October, Living Beyond Breast Cancer expert Joanna L. Fawzy Morales, Esq., answered your questions about how a diagnosis may impact your day-to-day work activities, what information you do or don’t need to share with your workplace, and where to find support and resources within your organization or from outside sources.
Remember: we cannot provide diagnoses, medical consultations or specific treatment recommendations. This service is designed for educational and informational purposes only. The information is general in nature. For specific healthcare questions or concerns, consult your healthcare provider because treatment varies with individual circumstances. The content is not intended in any way to substitute for professional counseling or medical advice.
I received notice that my position would be eliminated as a result of the company I worked for being acquired by another company. What obligation do I have to inform my next employer of my diagnosis? Should I attempt to conceal my situation during the interview?
Members of my support group have been told their workplace is not legally obligated to provide private changing areas for women who are uncomfortable changing in a locker room post-surgery for breast cancer, though they are required to provide a private space for employees who are breast feeding to pump. One woman asked for permission to use the breast feeding room to change, but was told no. What are your thoughts?
Question: I received notice that my position would be eliminated as a result of the company I worked for being acquired by another company. The notice came a few weeks after I returned to work from my breast cancer treatment. I still have reconstruction surgeries to complete and my hair is my curly badge of courage. What obligation do I have to inform my next employer? Should I attempt to conceal my situation during the interview?
Ms. Morales: Employees or job applicants are not required to share anything about their medical condition with an employer or potential employer, unless they need a reasonable accommodation under the Americans with Disabilities Act (ADA) or a state fair employment law. Employees are required to share some information about their medical condition with their employer if they are asking for some type of medical leave, such as leave available under the Family and Medical Leave Act (FMLA). However, in both cases, it is not necessarily required that you disclose your exact diagnosis. For example, you can describe symptoms that you are experiencing from treatment, which explain why you need an accommodation or medical leave, rather than just listing a diagnosis of cancer.
Question: During the breast cancer support group that I facilitate, questions have come up regarding the workplace providing private changing areas for women who are uncomfortable changing in a locker room post-surgery for breast cancer. My group members have been told that their workplace is not legally obligated to make this accommodation and so has no intention of doing so. One group member asked if she could change in the room that has been designated for employees who are breast feeding and need privacy to pump. She was told no. She was told that the workplace is required by law to provide that space but not space for her to change with privacy. What are your thoughts?
Ms. Morales: Under the Americans with Disabilities Act (ADA) and some state fair employment laws, eligible employees with disabilities are entitled to reasonable accommodations in the workplace. Reasonable accommodations are changes in workplace policies, schedules, physical environments, etc., which can help an employee with a disability enjoy equal employment opportunities. For example, if an employee needs additional rest periods during the day, providing a space for the employee to rest may be a reasonable accommodation.
Whether or not an accommodation is reasonable or effective depends on the specific workplace and the job requirements of that particular employee’s role. For questions about reasonable accommodations and employer requirements, visit askJAN.org.
Question: I work for a very small company. We have only six full-time employees. I have been fortunate that our company offers group health insurance so I had good coverage before my diagnosis as well as throughout my treatment. I know that people diagnosed with cancer who work for companies with more than 50 employees are protected by various employment laws. I wonder what, if any, rights an employee of a small company has? I also wonder if there are employment resources available specifically for cancer survivors? I feel I am tied to a job I do not like anymore, just to keep my health benefits — and that alone is not good for my health, I'm afraid.
Ms. Morales: The rights of employees who work for smaller employers vary greatly from state to state. Many of the federal laws only apply to larger employers. For example, the ADA applies to private employers with 15 or more employees and the FMLA only applies to private employers with 50 or more employees.
However, many states also have state laws that provide similar protections to the ADA and FMLA. For instance, if you are in Illinois, the state fair employment laws apply to employers with 1 or more employees. In New York, the state fair employment law applies to employers with 4 or more employees. So, it is important to know what the requirements are in your state, in addition to the federal protections. For information about balancing cancer and work, visit cancerandcareers.org.
Regarding your health insurance benefits, the Patient Protection and Affordable Care Act (health care reform) has many protections for individuals with a pre-existing condition such as cancer. For example, health insurance companies can no longer deny you health insurance coverage because of your health condition and they cannot charge you more because of it, either. There are also new health insurance options available through the State Health Insurance Marketplaces.For more information about these changes and to learn about your health insurance options, visit HealthCare.gov.
Question: Preserving quality of life is important and stress is an issue that can lower quality of life. How do you communicate to an employer that you need to keep your stress level down as a reasonable accommodation?
Ms. Morales: It is always important to engage your healthcare team when trying to balance work and cancer, but especially when trying to explain how your diagnosis and treatment has affected your health and how it is or is not affecting your ability to do your job. Your healthcare team can help you describe why it is important to reduce your stress levels. Similarly, your healthcare team can connect you with resources to help you to reduce your stress levels outside of the work environment and better cope with stressful situations at work.
Eligible employees are entitled to reasonable accommodations under the Americans with Disabilities Act (ADA) and state fair employment laws. Reasonable accommodations can be changes in workplace schedules, physical environments and policies to allow an employee with a disability to enjoy equal employment opportunities. It may be that a decreased workload is an accommodation that may reduce stress in a particular workplace. However, it is important to remember that accommodations still need to be reasonable and cannot pose an undue hardship on the employer. For example, if an employee is an elementary school teacher and being in the classroom is stressful, working from home would not be a reasonable accommodation for that teacher.
For more information about accommodations, visit AskJAN.org.
Ms. Morales: If you are unable to work and you have a disability that is expected to last longer than 1 year, you may qualify for federal long-term disability benefits through the Social Security Administration (SSA). There are two programs: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). SSDI is based on your work history, what you have paid into the Social Security Retirement System and whether or not you have worked recently. SSI is based on your low income and low asset level.
You can apply for one or both programs online at ssa.gov or by calling 800-772-1213. You can also make an appointment to visit with your local Social Security Administration office. When you apply, it is important that you can show not only that you have a particular medical condition and that it is affecting you, but that the effects manifest in your inability to work. If you are still working when you apply for benefits, you will likely be denied.
The application process for Social Security disability benefits is often a long one. There is a program called Compassionate Allowances, which has a list of medical conditions that are presumptively eligible for benefits. If you have a medical condition on this list, it may speed up your application process. To view the list of medical conditions, visit ssa.gov/compassionateallowances.
Question: I left my job when I was diagnosed 2 years ago and I’m ready to get back to work. How do I explain the large gap in employment on my resume and feel confident that someone will hire me in my field?
Ms. Morales: First, it is more common to see gaps on resumes given the current economic environment, so employers are less likely to assume that it is due to a medical condition. Second, there are some things that you can do to address the gap on your actual resume. For example, you can use a resume format other than a chronological resume, to focus on your skills, rather than on one that highlights time periods. You can also add to your resume anything that you might have been doing while you were not working (e.g., taking classes, learning a language, volunteering for community organizations, etc.).
Third, you should be prepared with an answer (that you have practiced and feel comfortable with) if you are to get a question about a gap on your resume, during an interview. And, fourth, consider contacting Cancer and Careers at CancerandCareers.org, which offers many practical tools and resources to help with the job search process, including a free resume review service and job coaching.
Ms. Morales: The Americans with Disabilities Act (ADA) and some state laws protect eligible employees from discrimination in the workplace and in all phases of the employment process. This means that job applicants are protected as well as employees. In addition, it means that employers should not be making employment-related decisions based on your medical condition. For example, employers cannot make decisions related to hiring, firing, promotions, benefits, etc., based on your medical condition.
If you believe that your employer reduced your hours because of your diagnosis and you would like your hours restored, a first step could be asking your employer to restore your hours. Oftentimes, communicating clearly with an employer can resolve many issues. Some employers are just unaware of their obligations under the law or don’t understand the circumstances, and some are just trying to be helpful. Your employer may think that you need or want the time off work. If that isn’t the case, talking with your employer about your preferences can help.
Question: I work part-time and did not have health insurance through my employer when I was diagnosed with breast cancer. What can I do now to get insurance? Will the Affordable Care Act (Obamacare) help me?
Ms. Morales: There are actually a few ways that the Affordable Care Act (ACA) may help you. First, beginning January 1, 2014, the ACA prevents insurance companies from denying you health insurance coverage based on your pre-existing medical condition, age or gender. Second, the ACA will also prevent insurance companies from charging you more because of your pre-existing medical condition or gender. Third, the ACA creates new options for health insurance coverage through expanding Medicaid and creating State Health Insurance Marketplaces. And, finally, the ACA provides financial help for you to buy health insurance coverage in the state health insurance marketplaces, based on your income level.
So, if you don’t currently have insurance or are looking for new insurance that is less expensive or has better coverage, you can look to see what options are available to you through your state health insurance marketplace. Visit healthcare.gov/marketplace/individual and click on the drop down menu to choose your state and find information on your options.
Ms. Morales: The Americans with Disabilities Act (ADA) and some state fair employment laws protect access to your medical information in the workplace. For example, if you ask for an accommodation and share information about your medical condition, that information is supposed to be kept in a separate employee file. Your medical information is supposed to be kept confidential. However, it is important to realize that if you tell your supervisor, that information may be passed up the chain of command to human resources or other executives, as appropriate.
Employees or job applicants are not required to share anything about their medical condition with an employer or potential employer, unless they need a reasonable accommodation under the ADA or a state fair employment law. Reasonable accommodations are changes in workplace policies, schedules, physical environments, etc., which can help eligible employees with a disability enjoy equal employment opportunities. For example, if an employee needs a flexible work schedule, that may be a reasonable accommodation. Whether or not an accommodation is reasonable or effective depends on the specific workplace and the job requirements of that particular employee’s role.
Employees are also required to share some information about their medical condition with their employer if they are asking for some type of medical leave, such as leave available under the Family and Medical Leave Act (FMLA). However, in both cases, it is not necessarily required that you disclose your exact diagnosis. For example, you can describe symptoms that you are experiencing from treatment, which explain why you need an accommodation or medical leave, rather than just listing a diagnosis of cancer. For more information about disclosure and reasonable accommodations, visit EEOC.gov and askJAN.org.
Ms. Morales: It is not uncommon for a cancer diagnosis to make people think about their lives and whether or not they want to make any changes, including changes to their work situation. When considering job changes, it is important to learn about your employment rights and to prepare for the job search and job application process.
To learn more about your employment rights, visit EEOC.gov and AskJAN.org. To gain access to useful information, tools, and resources related to balancing the job search process and cancer, visit CancerandCareers.org, which provides free job coaching, resume review services and job search toolkits.