Cancer in the Workplace, Ann Hodges
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Transcript of Cancer in the Workplace, Ann Hodges
Cancer in the Workplace
By: Ann C. Hodges, Co-founder, LINC and Professor of Law, University of Richmond
DisclaimerThis is a basic explanation of lawNot legal adviceEveryone’s circumstances are differentThe laws are complexFor legal advice, consult an attorney who can
get your full story and give advice based on all the facts
Cancer in the WorkplaceWork or Not?Legal ProtectionsEmployee ObligationsGaps in ProtectionFor More InformationPractical StrategiesLegal Assistance
Why Work?MoneyInsuranceDistraction/EnjoymentSocial SupportSolidify Employment Relationship
Why not work?Unable to work as a result of the cancer and/or
treatmentBetter for healing/treatmentNot working at time of diagnosisAltered preference for leisure v. workLack of accommodation/supportTerminated
Legal protections-
FMLA• Coverage – 50 or more
employees or gov’t employer, employed one year and worked 1250 hours in last year
• Twelve weeks unpaid job-protected leave for serious health conditions
• Can substitute paid leave at employer or employee request
• Health insurance continues• Intermittent leave available• Caregiver provision
FMLA – Employee Obligations
Notify employer 30 days before or as soon as possible
Provide medical documentation of need Try to schedule intermittent treatment to avoid
unduly disrupting employer’s business
FMLA -LimitsCoverage requirements exclude many (41% of
workers)Length of leaveUnpaid
Legal Protections – Americans with Disabilities Act
Coverage - Employers with 15 or more employees
Broad definition of disability will include most cancers
Bars discrimination on the basis of disability and requires reasonable accommodation
Must be qualified individual with a disabilityEmployer cannot ask about disability
Reasonable Accommodation
Must be reasonable Employer can show undue hardship – significant
difficulty or expenseCase-by-case determinationSome examples of possible accommodations –
extended leave, flexible schedules, telecommuting, assistance with job tasks, reassignment to a vacant job
Employee ObligationsNotify employer of need for accommodationProvide documentation of needEngage in interactive process to determine a
reasonable accommodation
ADA LimitationsSmall employers not coveredMust be able to do essential functions of job with or without
reasonable accommodationCourt interpretations of essential functions limit
accommodationsSome courts defer to employers and existing structuresHiring discrimination is hard to proveCase by case analysis makes prediction difficultSome courts allow employers to require most qualified for
reassignment
For More InformationADA which is enforced by the Equal Employment
Opportunity Commission - https://www.eeoc.gov/eeoc/publications/fs-ada.cfm
FMLA which is enforced by the U. S. Department of Labor - https://www.dol.gov/whd/fmla/index.htm
State lawsSome states have disability discrimination laws
and family and medical leave laws with different provisions and requirements
State law may be more protectiveA few states and localities have paid leave laws
but limited leave
Legal Protection - Disability
Social Security ActAge-based work requirements or income and asset eligibilityMust have a condition that prevents any work for
twelve months or expected to result in deathBenefits based on earnings or set by government for
SSI and dependents’ benefits availableFive month waiting period for benefitsMedicare eligibility after 24 monthsCompassionate allowances program can speed up
process of getting benefits and includes ovarian cancer with distant metastases or inoperable
Legal Protection - Disability
Five states and Puerto Rico have state disability programs
California, Hawaii, New Jersey, New York, and Rhode Island
Can get benefits from state program for temporary disability
Disability Benefits - Private
Can be provided by employer or purchased in marketEverything depends on the plan languageShort-term or long-termTotal or partial disabilityAny work or own occupationGoverned by different lawsEmployer-provided is cheaper If denied, follow plan appeal requirements carefully
Employee ObligationsApply for benefitsProvide evidence of meeting definition of
disabilityMeet all deadlines for application/appeal
Limits of disability benefitsOften no partial disability benefitsLack of coveragePublic benefits only in a few statesDelays in obtaining benefitsCost of privateChallenges of some cancer-related disabilities
like fatigue and cognitive impairments
For more informationSocial Security Disability -
https://www.ssa.gov/pubs/EN-05-10029.pdf Individual disability insurance -
http://www.dfr.vermont.gov/insurance/insurance-consumer/individual-disability-income-insurance and http://www.ncdoi.com/_Publications/Consumer%20Guide%20To%20Disability%20Insurance_CHE1.pdf
California disability insurance - http://www.edd.ca.gov/Disability/Disability_Insurance.htm
Legal Protection - Health Insurance
Patient Protection and Affordable Care ActLimits exclusions for preexisting conditionsEmployers with more than 50 employees must
provide to fulltime employeesLimits lifetime and annual benefit capsProvides more affordable coverageMakes available more affordable market-based
plans for those without employer coverageMandates certain coverage
Legal Protection – Health Insurance
COBRACoverage -Employers with 20 or more employeesMust offer continued insurance to those affected by
certain actions such as termination (except for gross misconduct), divorce, death of employee, hours reduction, aging out of dependent
At employer cost plus administrative fee rather than employee portion and thus expensive
Requires notice and election (60 day period)Must pay premiumsLasts eighteen months but if disabled may extend to
29 months but extension may cost more
Employee ObligationsFollow all plan requirementsMake required paymentsNotify employer of COBRA events and election in
timely mannerComplete all required paperwork in a timely
manner
Limits on Health Insurance Legal Protection
Still coverage gapsCost may be prohibitive for someWaiting periods (e.g. Medicare)Some plans may still have large deductibles, co-
pays, etc.
For more information PPACA -
https://www.cms.gov/cciio/resources/regulations-and-guidance/
COBRA - https://www.dol.gov/ebsa/faqs/faq-consumer-cobra.html
Employer PoliciesCheck employer policies regarding leave,
accommodation, transfers, light duty, disability, insurance, etc.
May or may not be legally enforceableComply with all policy requirements regarding
notice, reporting, appeals, etc.
Practical StrategiesWork with employer as much as possibleComply with all requirements of policies and
lawsUse an advocate – attorney, family member,
friendEnlist your doctor
For Legal AssistanceNational Employment Lawyers Association -
http://exchange.nela.org/network/findalawyerState NELA affiliatesLINC – www.cancerlinc.org (Central Virginia)National Cancer Legal Services Network -
http://www.nclsn.org/members/cancer-legal-resource-center/ (compilation of resources)
Medical/Legal Partnerships – http://medical-legalpartnership.org/