Toll Free: 877.880.

4477
Phone: 281.880.6525

EEOC Guidance When Employees or

Job Applicants Have Cancer

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 Basic human compassion and a general understanding of the treatment

situation of employees with cancer will guide you most of the way to dealing
with the situation appropriately. Yet the Equal Employment Opportunity
Commission (EEOC) wants to be sure employers treat cancer patients in a
manner consistent with the Americans With Disabilities Act (ADA).
If a job candidate reveals that he or she has cancer, the only follow-up
question you can ask about it is whether a reasonable accommodation will be
required in order to perform the job. Questions about the nature of the
cancer and current treatment plans are barred.

The situation changes, however, after you have made a conditional job offer.
A prospective future employee can be asked to undergo a medical exam,
assuming that requirement is applied to all similarly situated job offer
recipients.

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Dealing with Job Applicants

Here are some basic pointers to help ensure job applicants are treated
properly.

You cannot ask if they have any health conditions (including cancer) or a
history of such a disease.

You can ask questions pertaining to job qualifications and capabilities that
might be impacted by having cancer and undergoing treatment. Examples
include the ability to perform relevant physical tasks, the ability to travel or
work rotating shifts.

These individuals are under no obligation to disclose any history of cancer

"unless they will need a reasonable accommodation for the application
process," according to the EEOC. However, a job candidate may decide to
describe his or her own health situation. This is particularly likely for those
individuals who display the effects of cancer treatment (for example, hair
loss), simply to "dispel any rumors or speculation." These individuals might
also raise the topic in connection with the need for a "reasonable
accommodation" as permitted under the ADA.
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If a job candidate reveals that he or she has cancer, the only follow-up question
you can ask about it is whether a reasonable accommodation will be required
in order to perform the job. Questions about the nature of the cancer and
current treatment plans are barred.
The situation changes, however, after you have made a conditional job offer. A
prospective future employee can be asked to undergo a medical exam,
assuming that requirement is applied to all similarly situated job offer
recipients.

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Rescinding a Job Offer

You can also request a follow-up exam for a medical assessment of the
person's ability to perform the job safely. If that process reveals that the
individual has an inability to perform the job and that no reasonable
accommodation could change this fact, you can rescind the offer.

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If a current employee is having performance problems and you have a

reasonable basis to believe the difficulties might be related to a medical
condition such as cancer, you can ask questions. For example, you can
determine whether there are indeed medical factors behind the performance
issue. You can also ask about the employee's treatment plan if, for example,
chemo or radiation therapy is impeding his or her ability to perform up to par,
or to report to work at all. You can also ask about the cancer patient's need for
a reasonable accommodation.
And if the medical review concludes that cancer (or, more likely, cancer
treatment) is the culprit behind a performance issue, and the inability to
perform essential job functions cannot be resolved with reasonable
accommodations, you may pull the employee off the job until his or her health
condition improves sufficiently.

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Exploring the Need for Accommodations

An organization called the Job Accommodation Network (JAN) offers
employers a checklist of questions to ponder before making any assumptions
about what you might need to do to accommodate an employee battling
cancer.

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Here are a few:

1. Has the employee been consulted regarding possible accommodations?
2. What limitations is the employee experiencing?
3. How do these limitations affect the individual and his or her job
performance?
4. What specific job tasks are problematic as a result of these limitations?

5. What accommodations are available to reduce or eliminate these

problems?
6. Are all resources being used to determine possible accommodations?

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JAN also encourages employers to meet

with the employee diagnosed with
cancer to assess whether the
accommodations are effective and to
determine whether additional
accommodations are needed.
The EEOC offers several examples of
possible "reasonable" accommodations
you might make for an employee with
cancer. Recall that whether an
accommodation is reasonable or not
hinges on whether it would cause an
"undue hardship" on your business.
That determination is made on a case
by case basis.

Here is a link to the EEOC website,

which provides questions and
answers about cancer in the
workpace and theAmericans with
Disabilities Act.

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Here's the list:

Allowance of leave for doctors' appointments and time to recuperate

from treatments;

Periodic breaks or a private area to rest or take medication;

Modified work schedule or a shift change;

Permission to work at home;

Reallocation or redistribution of marginal tasks to another employee;

and

Reassignment to a vacant position when the employee is no longer able

to perform his or her current job.

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Throughout this process, you need to keep the employee's disease

confidential, just as you would any other health condition. Also, organizations
like the American Cancer Society can be an excellent resource for insights on
how to provide the right combination of respect and moral support that are
often crucial to a cancer patient's full recovery.

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Toll Free : 877.880.4477
Phone
: 281.880.6525
Fax
: 281.866.9426

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