Ask The Lawyer, Is Cancer a Disability?
IS CANCER A DISABILITY?
QUESTION: I was diagnosed with breast cancer last month. My employer seemed sympathetic and told me I should schedule leave when I need it, but last week I was laid off. I was told the company was restructuring, and my position was being eliminated. I think I was laid off because I was going to miss a lot of work once start chemotherapy. Can they discriminate against me because I have cancer?
ANSWER: Cancer is a disability under the Americans with Disabilities Act, the law which makes it illegal to discriminate against someone because of a disability. So, you may have a case. But, just having a disability and being fired is not enough. You must be able to show you could do your job in spite of your disability (even if you need a “reasonable accommodation” to do so) and that you were laid off because of your disability, and not for poor performance or business necessity or some other valid reason.
While you will need time off for chemotherapy and/or radiation, courts have ruled that time off for treatment may be a “reasonable accommodation,” so the fact you need to take a temporary leave does not prove your ability to do your job is affected by your disability.(And, your employer is not allowed to discharge you for asking for leave under the Family and Medical Leave Act, but that’s another issue and one you should explore.) The obstacle in your way is that your employer has given a business justification for your layoff, that has nothing to do with your disability. If you can show that job restructuring is not the real reason you were laid off (for example, if someone else is hired to do the work you had been doing), you will have met all the requirements of an ADA claim – and may want to look for a lawyer for further assistance.
One final caution, a recent case ruled that you must describe what “major life activity” your cancer “substantially affects.” Failing to state this – even if the “major life activity” is cell regeneration! – could be detrimental to your case.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
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