Disease discrimination Featured

7:21am EDT October 21, 2004
Every year, more than 1.4 million Americans are diagnosed with cancer. Cancer does not discriminate by race, income, age or gender, but thankfully, researchers have made great strides and more people than ever survive.

But survival can present new challenges, especially in the work place. While cancer does not discriminate, some employers do -- even unintentionally. Common claims of discrimination include refusal to hire, demotion, failure to promote, denial of time off for medical appointments, suggesting the employee would be better off not working and denial of health insurance.

Employers may worry about how chemotherapy and other treatment, ongoing medical monitoring or residual limitations may affect job performance. While these are legitimate concerns, federal and state antidiscrimination laws protect both the patient and survivor. In addition to the Americans with Disabilities Act, Ohio employers with four or more employees must comply with the fair employment practice provisions of Chapter 4112 of the Ohio Revised Code.

Cancer has been generally recognized as a protected disability under state and federal law. However, Ohio has specifically listed cancer as an impairment, which can be considered a disability.

State and federal laws require an employer to provide a reasonable accommodation to a qualified individual with a disability where it will enable the employee to perform the essential functions of the job. This may include permitting a modified work schedule to allow the employee to attend medical appointments or purchasing special equipment to assist the employee in doing his or her job.

The exceptions to these laws are few.

First, a qualified individual must be able to perform the essential functions of the job with or without accommodation, and cannot pose a direct threat to his or her safety or the safety of others. In addition, an employer does not have to make a reasonable accommodation if it would impose undue hardship.

In determining what constitutes an undue hardship, the Civil Rights Commission considers the business necessity, the size of the business and whether the cost of the accommodation can be included in planned remodeling or maintenance.

In addition to antidiscrimination laws, businesses that employ more than 50 employees must comply with the Family and Medical Leave Act, which permits employees with a "serious" medical condition to take unpaid leave for up to 12 weeks.

To be eligible, the employee must have worked for the employer for at least 12 months and 1,250 hours during the 12 months prior to the leave. An employee does not get credit for paid sick leaves, vacations or holidays.

Finally, employees may have legal remedies for insurance discrimination. The Comprehensive Omnibus Budget Reconciliation Act (COBRA) is a federal law that requires an employer with more than 20 workers to provide a continuation of group health coverage -- often at the employees' expense -- to employees who may become ineligible for regular benefits.

The Employee Retirement and Income Security Act (ERISA) prohibits an employer from firing a worker due to the worker's history of cancer or that of his or her spouse or child. ERISA also prohibits an employer from encouraging a worker with a history of cancer to take disability retirement.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) permits cancer victims to change jobs without losing health insurance coverage, so long as they were insured for the previous 12 months. it also prevents group health plans from denying coverage based on an employee's medical or claim history.

An employer may deny coverage under the ADA if it can show coverage would create an undue hardship upon the plan or the business. The employer must justify the denial by using insurance statistics and show an "actual substantial increase" in costs.

For example, an employer may deny coverage to an employee with a history of cancer if it can show the history would drive up the cost of premiums to the extent that the business could no longer afford to carry the group policy. However, denying insurance under such circumstances obviates the likelihood of a lawsuit and should be undertaken with great caution.

Kendra L. Carpenter is an associate in the Columbus office of Vorys, Sater, Seymour and Pease LLP where she practices in the litigation group. Reach her at (614) 464.6467 or www.vssp.com.