For fans of Southeastern Conference football (and, I mean, who isn’t, right?), the name “Eric Berry” is one you don’t easily forget. Berry made his presence known as a defensive back for the Tennessee Volunteers from 2007-2009. Even though he played only three seasons in college, he was twice named a Defensive All American by unanimous vote. Berry was drafted in 2010 by the Kansas City Chiefs and was selected to the Pro Bowl as a rookie. He suffered a torn ACL in 2011 but returned the following year and earned another Pro Bowl selection in 2012 and again in 2013. Quite simply—water covers 71 percent of the Earth, Eric Berry covers the rest.
Berry’s career took a surprising and unfortunate turn in 2014, however, after he complained of chest pain during a game against the Oakland Raiders. He was soon diagnosed with Hodgkin’s lymphoma, ending his season, and threatening his life. Thankfully, after several months of chemotherapy treatment at Emory Hospital in Atlanta, Georgia, Berry is now cancer free. In June of this year, doctors cleared Berry to return to football activities. So far, he has played in both of the Chief’s preseason games.
The decision to put Berry back on the field shows Chief’s Head Coach Andy Reid can teach employers about more than just how to grow the perfect mustache (bask in its glory!!!). While bringing an all-star like Berry back into the fold seems like a no-brainer, dealing with returning cancer survivors in the regular workplace can be far more complicated.
To start, employers should understand that cancer survivors are considered “disabled” under the Americans with Disabilities Act (ADA) because they have a “record of disability.” Such a designation can prove complicated for employers where the employee, after returning from treatment, continues to amass absences.
Take the experience of one hospital employer in handling the return of an employee who had undergone successful treatment of skin cancer. After receiving a clean bill of health, the employee returned to work. Within a month of returning, however, the employee was frequently absent. After a string of three absences in a row, the employer placed the employee on a leave of absence and informed her she must bring a work release without restrictions in order to return. The hospital later terminated the employee for no call/no show on three consecutive days.
The Equal Employment Opportunity Commission (EEOC) filed suit on behalf of the employee claiming disability discrimination and moved for summary judgment. The court held the employee’s former skin cancer qualified as a “record of disability” under the ADA. The court also found the closeness in time between when she was placed on a leave of absence and her termination could support an inference of discriminatory intent, and thus, allowed the case to proceed to trial.
But employers should note that an employee’s cancer diagnosis doesn’t make them untouchable when they violate legitimate business policies or cannot perform the essential functions of the position. In a recent case from the Eleventh Circuit Court of Appeals, a woman who was undergoing cancer treatment accepted a position as a detention deputy in the corrections department of a jail. The position required lengthy shifts. When the employee’s medical condition prevented her from making it all the way through her shifts, her employment was terminated. The employee sued claiming her employer violated the ADA by failing to provide her with temporary light duty or extend her leave. The Eleventh Circuit rejected her argument noting completing full shifts and maintaining a regular schedule were essential functions of her position. Further, the Court noted the employee failed to show that she ever actually requested a leave of absence. Therefore, although a leave could have been a reasonable accommodation, the Court held the employer’s duty to engage in the interactive process had not been triggered.
These cases highlight the difficult considerations employers must take into account when dealing with an employee who is actively fighting cancer or returning to work after treatment. While employers should never make decisions based solely on the employee’s condition, they should not be gun-shy if the employee is rendered unable to perform his or her essential functions. In any situation in which you are uncomfortable making a decision regarding a potentially disabled employee, it is best to contact a trusted professional to discuss the situation before taking action.
Need to learn more? Last year, there were 1.6 million new cancer cases in the United States, plus an additional 2 million nonmelanoma skin cancer diagnoses. And with these numbers set to rise, it’s safe to say you will have an employee, or an employee’s family member, fighting this dreaded disease. If the situation weren’t difficult enough on a personal level, HR also has to comply with the ADA and FMLA—not to mention GINA and a whole host of state and federal privacy laws. And productivity issues come into play when absences become protracted. Listen to Employees with Cancer: Commonsense Answers for ADA, FMLA, and Privacy Compliance – on CD.