Working With Cancer: How the Law Can Help Survivors Maintain Employment

• Publication year: 2021

WORKING WITH CANCER: HOW THE LAW CAN HELP SURVIVORS MAINTAIN EMPLOYMENT

Ann C. Hodges(fn*)

Abstract: Advances in cancer treatment are saving lives, but along with the benefits come challenges. Millions of cancer survivors of working age need to support themselves and their families. This Article looks at the impact of cancer on employment starting with the empirical evidence gathered by researchers affiliated with medical centers. This empirical research provides a base, not previously explored in the legal literature, for assessing the existing laws dealing with cancer and employment (or unemployment). Viewing the law through this lens, which reveals the complex relationship between cancer and employment, exposes both the promise and the weakness of existing laws and offers ideas about legal changes that would better meet the needs of cancer survivors and their families.

INTRODUCTION .............................................................................. 1040

I. THE NEW FACE OF CANCER ................................................. 1043

II. CANCER AND WORK ............................................................... 1045

A. The Relationship of Cancer and Work ............................... 1045

B. Determinants of Employment ............................................ 1049

1. Cancer and Treatment Factors .................................. 1051

2. Demographic Factors ............................................... 1053

3. Type of Work ........................................................... 1054

4. Source of Health Insurance ...................................... 1055

5. Employer Support and Accommodation .................. 1057

C. Summary ............................................................................ 1058

III. THE LAWS ................................................................................. 1059

A. Normative Goals ................................................................ 1061

B. Family Medical Leave Act ................................................. 1062

C. Americans with Disabilities Act ........................................ 1065

1. A Historical Perspective ........................................... 1066

2. The ADA Amendments Act: Restoring the Act's Coverage ................................................................... 1069

3. Qualified Individuals with a Disability .................... 1072

4. Hiring, Termination, and Other Discrimination ....... 1073

5. Reasonable Accommodation .................................... 1076

a. Leave as a Reasonable Accommodation ............ 1077

i. Paid Leave ................................................... 1078

ii. Unpaid Leave .............................................. 1079

b. Job Flexibility as an Accommodation ................ 1085

i. Providing Assistive Equipment ................... 1085

ii. Requests to Work from Home ..................... 1089

iii. Rest Breaks and Flexible Schedules ............ 1091

c. Reassignment as a Reasonable Accommodation ................................................. 1095

D. The FMLA, the ADA, and Cancer ..................................... 1099

E. The Limits of Legal Change ............................................... 1109

IV. SARAH'S FATE ......................................................................... 1110

CONCLUSION .................................................................................. 1112

INTRODUCTION

Faced with a cancer diagnosis, chemistry teacher Walter White, protagonist of the popular television show Breaking Bad, turned to the drug trade to provide financial security for his family.(fn1) Dramatic potential notwithstanding, most cancer patients do not "break bad." Instead they are more like Sarah.(fn2) After working ten months for her current employer, Sarah was diagnosed with lung cancer, which requires regular chemotherapy treatments and surgery. Her employer, a hospital, has several hundred employees, many of whom are engaged in shift work. To accommodate her treatment, Sarah has been trading shifts with other employees to avoid working on treatment days, but her supervisor has objected and threatened to fire her for being unable to work her regularly scheduled shift. In addition, the supervisor has begun to criticize her job performance, despite her stellar review after six months of employment. The stress from fear of job loss has compounded the stress from the cancer diagnosis. Like most employees, Sarah's health insurance is through her employer. She is facing surgery and has only accumulated two weeks of paid sick leave, a generous amount considering her short tenure, which she has been saving for the surgery and recovery. She is ineligible for more, either by law or employment policy, because of her length of employment. Although the doctors have offered her hope that treatment will provide a good chance of survival, she is uncertain whether she will be able to return to full-time work within two weeks of the surgery. Sarah needs to support herself and her family now and in the future, and needs continued health insurance to pay for treatment. Sarah's situation is typical of many cancer patients.

Cancer is no longer a death sentence. As a result of significant advances in cancer treatment, individuals with cancer are living longer. In many cases, cancer is now a chronic disease rather than a fatal one. These advances in medicine, however positive, come with costs for the survivors and society. The treatments that preserve lives are often expensive. In addition to paying for treatment, individuals with cancer must continue to support themselves and their families during and after treatment. Indeed, as former Justice Sandra Day O'Connor discovered during her own cancer treatment, maintaining employment can assist in battling cancer: "As tired and stressed out as I was, I had a job that was hard and important and was always there for me to do."(fn3)

Despite the need to maintain employment and the benefits of doing so, many individuals with cancer or a history of cancer are either unemployed or underemployed. Because health insurance is tied to employment for many in the United States, the lack of employment may lead to inability to pay for treatment and necessary follow-up. Not surprisingly, unemployment leads to credit problems and bankruptcy. Accordingly, the changing face of cancer imposes both individual and societal costs.

Not all cancers fit this picture, however. Cancer ranges from the basal cell carcinoma that is treated in one or two doctor visits to advanced liver cancer that is rapidly fatal. Moreover, even within cancer types, researchers are discovering that cancer is not one, but many different diseases. The treatment and effects vary widely. What unites most cancers, however, is the long-term and life-changing consequences of the disease. Survivors live with continual follow-up, lasting effects of treatment, and the possibility and reality of recurrence and further treatment.

As the medical profession has advanced in cancer treatment, the law has fallen behind in addressing the needs of cancer survivors. When cancer patients almost inevitably died, and rather quickly, the major intersection of law and cancer was in providing for the patient's survivors after death. As survival becomes the norm, issues of health insurance coverage, employment, and disability benefits for the cancer survivor come to the fore. While the law addresses each of these issues in various ways, none are precisely tailored to the evolving needs of cancer survivors.

Because cancer affects millions of Americans, this Article seeks to begin a dialogue about the best way for the law to address the needs of survivors and their families. The focus on cancer derives from extensive personal experience with the legal needs of cancer patients.(fn4) Focusing on cancer is also appropriate because of the sheer number of individuals affected, the substantial anticipated growth in the number of survivors in the future, and the staggering cost of lost productivity resulting from cancer.(fn5) But in many ways the issues discussed in this Article are not unique to cancer, as survival rates have increased for other chronic diseases such as HIV,(fn6) diabetes, and heart disease, raising similar public policy issues at the intersection of law and medicine.(fn7) Thus, this examination of cancer and law may provide lessons for other illnesses as well.

This Article begins with a discussion of the scope of the issue, examining the prevalence of cancer, the increases in survival rates, and the impact of cancer on employment, as well as the effects of unemployment and underemployment of cancer survivors.(fn8) Having explored the problem, this Article then moves to the normative goals that the law should seek to achieve for cancer patients. Finally, this Article focuses on two laws that are designed to preserve and promote employment of individuals with health conditions such as cancer: the Americans with Disabilities Act ("ADA")(fn9) and the Family Medical Leave Act ("FMLA").(fn10) As the Article considers the effects of these laws, it will apply them to Sarah, the hypothetical but typical cancer patient, as an example of their impact.

After analyzing these laws, this Article concludes that while recent amendments to the ADA benefit cancer survivors, neither the ADA nor the...