What Happens When an Employer Says Cancer Is Not an ADA Disability?

By Eric B. Meyer

What happens when an employer-defendant argues that cancer — CANCER! — is not an ADA disability?

How do you think that worked out? (I’ve got a pretty good guess too).

In EEOC v. Midwest Regional Medical Center, LLC (yes, the employer-defendant was a friggin’ hospital!), the U.S. Equal Employment Opportunity Commission filed suit on behalf of an employee who had been diagnosed with basal-cell carcinoma. According to the EEOC, the employee informed her supervisor of her cancer diagnosis and that she would undergo radiation treatment.We’re not talking about a hangnail here, people. (Although under the ADAAA, a hangnail is probably a disability too, but I digress…)

Cancer IS a “record of disability” under the ADA

Yadda, yadda, yadda, the company terminates the employee allegedly for violating its no-call/no-show policy. The EEOC alleges disability discrimination.

The definition of “disability” under the Americans with Disabilities Act has three prongs. Under the second prong, an individual is considered disabled if he/she has a record of a disability (i.e., a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities).

The EEOC’s guidance clarifies:

The intent of the [record of] provision, in part, is to ensure that people are not discriminated against because of a history of disability. For example, the record of provision would protect an individual who was treated for cancer ten years ago but who is now deemed by a doctor to be free of cancer, from discrimination based on that prior medical history.”

Limiting a  major life activity

Yep, it specifically mentions cancer. Twice.

And because the employee’s doctor had diagnosed her with cancer, the Court had little trouble concluded that she had a record of a disability and, thus, a “disability” under the ADA.

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Now, you may be thinking to yourself, “isn’t cancer an “actual disability” too?”

The first prong of the definition of “disability” states that an impairment that substantially limits one major life activity is a disability too. Once again, under the EEOC’s interpretive guidance, cancer is a disability is “in virtually all cases.” However, in the case, the court concluded that disputes of material fact existed as to whether the employee’s skin cancer was an actual disability.

Bottom line advise for employers

I find it hard to envision any scenario where an employee’s cancer is anything but an ADA disability. So, rather than argue that point, focus instead on reasonable accommodations for the employee to allow him/her to perform the essential functions of the job.

Leave from work may be one such accommodation.

That said, employers have the right to enforce their call-in/call-out rules uniformly, regardless of whether the employee has a disability. Therefore, make sure that your employees are aware of these rules and that your managers are enforcing them.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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