Presented July 9, 2016 at the Ovarian Cancer National Conference in Washington, DC

1. Cancer in the
Workplace
By: Ann C. Hodges, Co-founder, LINC and Professor of Law,
University of Richmond

2. Disclaimer
 This is a basic explanation of law
 Not legal advice
 Everyone’s circumstances are different
 The laws are complex
 For legal advice, consult an attorney who can get your
full story and give advice based on all the facts

3. Cancer in the Workplace
 Work or Not?
 Legal Protections
 Employee Obligations
 Gaps in Protection
 For More Information
 Practical Strategies
 Legal Assistance

4. Why Work?
 Money
 Insurance
 Distraction/Enjoyment
 Social Support
 Solidify Employment Relationship

5. Why not work?
 Unable to work as a result of the cancer and/or
treatment
 Better for healing/treatment
 Not working at time of diagnosis
 Altered preference for leisure v. work
 Lack of accommodation/support
 Terminated

6. 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

7. 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

8. FMLA -Limits
 Coverage requirements exclude many (41% of
workers)
 Length of leave
 Unpaid

9. 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 disability
 Employer cannot ask about disability

10. Reasonable Accommodation
 Must be reasonable
 Employer can show undue hardship – significant
difficulty or expense
 Case-by-case determination
 Some examples of possible accommodations –
extended leave, flexible schedules, telecommuting,
assistance with job tasks, reassignment to a vacant job

11. Employee Obligations
 Notify employer of need for accommodation
 Provide documentation of need
 Engage in interactive process to determine a
reasonable accommodation

12. ADA Limitations
 Small employers not covered
 Must be able to do essential functions of job with or without
reasonable accommodation
 Court interpretations of essential functions limit
accommodations
 Some courts defer to employers and existing structures
 Hiring discrimination is hard to prove
 Case by case analysis makes prediction difficult
 Some courts allow employers to require most qualified for
reassignment

13. For More Information
 ADA 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

14. State laws
 Some states have disability discrimination laws and
family and medical leave laws with different provisions
and requirements
 State law may be more protective
 A few states and localities have paid leave laws but
limited leave

15. Legal Protection - Disability
 Social Security Act
 Age-based work requirements or income
and asset eligibility
 Must have a condition that prevents any work for twelve
months or expected to result in death
 Benefits based on earnings or set by government for SSI
and dependents’ benefits available
 Five month waiting period for benefits
 Medicare eligibility after 24 months
 Compassionate allowances program can speed up
process of getting benefits and includes ovarian cancer
with distant metastases or inoperable

16. 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

17. Disability Benefits - Private
 Can be provided by employer or purchased in market
 Everything depends on the plan language
 Short-term or long-term
 Total or partial disability
 Any work or own occupation
 Governed by different laws
 Employer-provided is cheaper
 If denied, follow plan appeal requirements carefully

18. Employee Obligations
 Apply for benefits
 Provide evidence of meeting definition of disability
 Meet all deadlines for application/appeal

19. Limits of disability benefits
 Often no partial disability benefits
 Lack of coverage
 Public benefits only in a few states
 Delays in obtaining benefits
 Cost of private
 Challenges of some cancer-related disabilities like
fatigue and cognitive impairments

20. For more information
 Social 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%2
0To%20Disability%20Insurance_CHE1.pdf
 California disability insurance -
http://www.edd.ca.gov/Disability/Disability_Insurance.htm

21. Legal Protection - Health
Insurance
 Patient Protection and Affordable Care Act
 Limits exclusions for preexisting conditions
 Employers with more than 50 employees must provide to
fulltime employees
 Limits lifetime and annual benefit caps
 Provides more affordable coverage
 Makes available more affordable market-based plans for
those without employer coverage
 Mandates certain coverage

22. Legal Protection – Health
Insurance
 COBRA
 Coverage -Employers with 20 or more employees
 Must 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 premiums
 Lasts eighteen months but if disabled may extend to 29
months but extension may cost more

23. Employee Obligations
 Follow all plan requirements
 Make required payments
 Notify employer of COBRA events and election in
timely manner
 Complete all required paperwork in a timely manner

24. Limits on Health Insurance
Legal Protection
 Still coverage gaps
 Cost may be prohibitive for some
 Waiting periods (e.g. Medicare)
 Some plans may still have large deductibles, co-pays,
etc.

25. For more information
 PPACA -
https://www.cms.gov/cciio/resources/regulations-and-
guidance/
 COBRA - https://www.dol.gov/ebsa/faqs/faq-consumer-
cobra.html

26. Employer Policies
 Check employer policies regarding leave,
accommodation, transfers, light duty, disability,
insurance, etc.
 May or may not be legally enforceable
 Comply with all policy requirements regarding notice,
reporting, appeals, etc.

27. Practical Strategies
 Work with employer as much as possible
 Comply with all requirements of policies and laws
 Use an advocate – attorney, family member, friend
 Enlist your doctor

28. For Legal Assistance
 National Employment Lawyers Association -
http://exchange.nela.org/network/findalawyer
 State NELA affiliates
 LINC – 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/