Is cancer considered to be a disability when it comes to ADA protections? The short answer is yes. The longer answer will depend on the specific circumstances of the employee. So, when is cancer a disability? It will be when:
- Cancer or its side effects substantially limits one or more of a person’s major life activities. This would qualify that person as currently disabled.
- Cancer was substantially limiting sometime in the past. This would qualify someone as having a record of disability.
- The employer takes action against the individual based on an actual or perceived impairment, such as cancer, that is not transitory and minor. This would qualify as the individual being regarded as disabled.
Each of these three scenarios would trigger ADA protections.
It’s also important to note that other conditions that can result from or be more prevalent for individuals with cancer, such as depression and anxiety. Cancer can also increase someone’s susceptibility to other serious illness. These related conditions could be disabling on their own.
When is Cancer a Current Disability?
The main question here is: does the cancer substantially limit the individual’s ability to perform one or more major life functions?
The definition of major life activities is incredibly broad under the ADAAA. “It is so broad that the EEOC’s regulations implementing the ADA Amendments Act have said that using any type of a ‘predictable assessment’ analysis of who is going to be covered under the broad definition of disability under the Americans with Disabilities Act today, cancer most certainly is going to be a current disability and covered under the new ADAAA.” Jonathan R. Mook told us in a recent BLR webinar.
Major life activities include breathing, sleeping, eating, caring for one’s self, walking, interacting with others, working, reading, bending, and communicating. The definition also includes functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Additionally, mitigating measures (such as treatment) cannot be considered in the assessment, while any adverse impacts of mitigating measures must be taken into account.
It’s easy to see how many cancers could easily be defined as disabilities, thus meaning that an individual with cancer would be subject to ADA protection.
Having a History of Cancer/Employer Assumptions of Cancer
The ADA also protects those with a record of being disabled, and this includes an impairment that is episodic or in remission if it would substantially limit a major life activity when active. As such, an employee who had cancer in the past would still be entitled to some protections even if the cancer is in remission.
It’s also true that an employee is entitled to some protections if they are regarded as disabled—even if it is not true.
“If you take a job action based upon a perception that someone has cancer, you have discriminated on the basis of disability.” Mook told us. This is true even if the person does not have cancer.
This provision protects an employee who is regarded as being disabled by the employer, since the assumption being made here by the employer is that individuals with cancer could be limited in their ability to perform.
While an employer cannot take discriminatory action against an employee who is regarded as disabled (even if they are wrong in the assumption), there is no reasonable accommodation requirement for someone who does not actually have a disability. But this will not come up in many situations.
For more information on when cancer qualifies as a disability, order the webinar recording of “Employees with Cancer: Commonsense Answers for ADA, FMLA, and Privacy Compliance.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Jonathan R. Mook is a founding partner in the firm of DiMuroGinsberg and is a nationally recognized authority on the Americans with Disabilities Act. He has authored two published treatises: “Americans with Disabilities Act: Employee Rights and Employer Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.”