Americans With Disabilities Act: Information for People Facing Cancer

Disclaimer: The American Cancer Society does not offer legal advice. This information is given only to provide general background in this area of the law.

The Americans with Disabilities Act of 1990 (ADA) is a law that helps protect the civil rights of people with disabilities. It can help people with disabilities have equal opportunities in:

• Employment
• Public accommodations (places that are generally open to and used by the public)
• Transportation
• State and local government services
• Telecommunications

The United States Department of Justice enforces the ADA requirements in 3 areas:

• Title I: Employment practices by units of state and local government (remember that the EEOC enforces most work-related practices)
• Title II: Programs, services, and activities of state and local government, including public transportation
• Title III: Public accommodations and commercial facilities (private businesses and non-profit service providers). This can include privately owned or privately run transportation, movie theaters, restaurants, stores, doctors’ offices, fitness centers, zoos, convention centers, private schools, day care centers, homeless shelters, funeral homes, and more.

Title IV of the ADA covers people with hearing and speech problems, and is enforced by the Federal Communications Commission (the FCC). For more on those rules, or visit www.fcc.gov/encyclopedia/title-iv-ada.

How can the ADA help people with cancer?

People with cancer can have long-term disabilities that make it hard to work or get around. The ADA is intended to make it possible for people who can do the essential parts of their job to go back to work or keep working during and after cancer treatment. Even when a person with cancer doesn’t have a disability, they may be thought of as being disabled. This alone can set the stage for discrimination at work, and the ADA addresses this as well.

The ADA can help people who might have trouble getting into buildings and using public accommodations (such as commercial and other buildings, stores, libraries, offices, transportation etc., that are intended to be used by the public) due to a disability. The ADA can also help people with hearing and speech problems use phone and electronic communications.

To find out if the ADA might help you, you’ll want to know if it applies to your condition, your employer, and public accommodations, as discussed here.

What is a disability under ADA?

The Americans with Disabilities Act may apply to you if:

• You have a physical or mental problem that substantially limits one or more of your major life activities
• There is a record of you having had such a problem in the past.
• Other people think you have such a problem, even if you don’t actually have it.

Some of the major life activities covered by ADA include but are not limited to:

• Caring for yourself
• Doing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Communicating
• Working

Is cancer considered a disability under the ADA?

According to the United States Equal Employment Opportunities Commission (EEOC), cancer is not always considered a disability. The ADA can help protect you when cancer prevents or makes it very hard for you to do everyday tasks such as household chores, bathing, and brushing your teeth. But this kind of disability must be permanent or long-term. And, the ADA protects you if you had cancer in the past, but are doing well now.

On January 1, 2009, the ADA Amendments Act of 2008 went into effect. It changed the way the definition of disability had been interpreted under the ADA. The Amendments Act covers disabilities in the body and mind, like the functions of the immune system, cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. These changes can help many people with cancer to clearly meet the definition of disability.

How the ADA affects jobs

Does the ADA apply to my employer?

The law applies to employers with 15 or more employees. Job discrimination against people with disabilities by these employers is not legal if practiced by:

• Private employers
• State and local governments
• Employment agencies
• Labor organizations
• Labor management committees

Employees of the US (federal) government are not covered under the ADA. But they have the same protections under a different law, which is enforced by the Office of Federal Operations of the Equal Employment Opportunities Commission (EEOC). To file a complaint, a federal employee must first contact an equal employment opportunity counselor at the agency in which they believe the discrimination took place. You can learn more from the EEOC website.

Here are a couple of key points about how the ADA applies to you at work.

• The ADA must apply to your employer as noted in the section above. You must also be qualified for and able to perform the essential functions of the job.
• Although the ADA defines the term disability, it does not include a list of conditions that are always considered disabilities. Instead, each case must be looked at on its own merits.
• An employer may not discriminate against you because you used to be sick.
• The ADA also prevents an employer from discriminating against you if they think you are sick, even if you aren’t.

Which employment practices does the ADA cover?

If you have a disability and are qualified for a job, the ADA does not allow the employers noted above (see Does the ADA apply to my employer?) to discriminate in employment practices, such as:

• Recruiting and advertising for job openings
• Job application and hiring
• Training
• Job assignments
• Tenure
• Promotions
• Pay
• Benefits
• Leave
• Firing
• Lay off
• All other employment-related activities, terms, conditions, and privileges

An employer cannot take action against you because you ask for your rights under the ADA. The Act also protects you if you are discriminated against because of your family, business, social, or other type of relationship or association with a person who has a disability. For instance, this means an employer cannot discriminate against you because your spouse or child has cancer.

Still, the ADA does not completely protect your job just because you have a disability and are qualified for the job. The employer can still fire or lay off (terminate) an employee with a disability for legitimate business reasons. For instance, a disabled worker would not be protected during downsizing.

What does the ADA consider essential job functions?

If you have a disability, you must be qualified to perform the essential functions of a job to be protected from job discrimination by the ADA. Essential functions are the fundamental duties required by the job itself. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job.

But you must satisfy the employer’s job requirements such as education, employment experience, skills, or licenses. Employers are not required to lower their job standards to accommodate someone with a disability. Nor do they have to provide personal-use items such as glasses or hearing aids.

You also must be able to perform the essential functions of the job either on your own or with reasonable accommodation (see definition of accommodation in the next section).

What does the ADA consider reasonable accommodation?

Reasonable accommodation is how an employer makes adjustments to a job to allow an employee with a disability to perform the essential functions of that job. But reasonable accommodation can start even before hiring. For example, it may be a change in procedure that allows a qualified disabled person to apply for a job.

For those already working, reasonable accommodation can be a change that allows disabled people to have the same benefits and privileges of employment as employees without disabilities. Examples of reasonable accommodations may include:

• Providing equipment or devices, or adapting them so the person with a disability can use them
• Restructuring a job
• Changing work schedules
• Reassigning the employee to a vacant position
• Adjusting or modifying tests, training materials, or policies
• Providing electronic readers and/or interpreters
• Making the workplace easy to get into and use by people with disabilities

An employer must accommodate a qualified applicant or employee with a disability unless the employer can show that making the accommodation would not be reasonable. That means that the accommodation would be very difficult or expensive (an “undue hardship”). These factors include the type and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation. In general, a larger employer would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer.

The facts of your case will help determine whether an accommodation will make it possible for you to do the job and, if so, what kind of accommodation is needed. Employers do not have to know about every kind of disability to know whether or how to make a reasonable accommodation. They are required to accommodate only those disabilities they know about and that do not cause too much hardship for the employer. The requirement is usually triggered by a request from a person with a disability, who often can suggest a workable accommodation.

Accommodations must be made on a case-by-case basis because the type and extent of a disability and the requirements of the job will vary in each case. If you don’t ask for an accommodation, the employer is not required to provide one. If you ask for an accommodation, but cannot suggest one that will work for you, you and the employer should work together to identify one. There are also many public and private resources that can provide help without cost. See Additional resources below.

What are employers allowed to ask job applicants with disabilities under ADA?

When you apply for a job, employers can’t require you to say if you are disabled. They also can’t ask about the type or how severe a disability you have. Employers may not ask you if you have or have ever had cancer. They can’t ask about the medicines you take, or past illness. But they can ask you about your ability to perform certain job tasks. An employer can ask you to describe or show them how, with or without reasonable accommodation, you will perform the duties of the job.

If you are required to have a medical exam as part of a job application, an employer cannot reject you because of information a medical exam reveals unless the reasons for rejection are related to the job and necessary to conduct the employer’s business. The results of all medical exams must be kept confidential. Medical files must be kept separate from work or personnel files.

Should I tell my employer I have a disability?

If you think you’ll need accommodation to be able to apply for a job or to perform essential job functions, you may decide to tell the employer that you have a disability. Employers are only required to provide reasonable accommodation if they know about the disability. Generally, the employee is the person who must tell the employer that an accommodation is needed. But you are not required to offer information about having cancer or another disability when you apply for a job.

Does my employer have to provide any accommodation I request?

No. There is some flexibility built into the reasonable accommodation requirement under the ADA. For example:

• Employers can choose among effective accommodation options and don’t always have to provide the accommodation that the employee requests.
• Employers do not have to provide accommodations that pose an undue hardship for them.
• Employers do not have to provide personal-use items that are needed for daily activities both on and off the job.
• Employers do not have to make an accommodation for a person who isn’t otherwise qualified for the job.
• Employers do not have to remove essential functions, create new jobs, or lower production standards to accommodate a disabled employee.

Under ADA, does the employer have to hire a qualified applicant with a disability over other qualified applicants?

No. The ADA does not require an employer to hire a person with a disability over other applicants because the person has a disability. The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability just because they are disabled. It’s also unlawful to refuse to hire the qualified person because a reasonable accommodation is required to make it possible for this person to perform essential job functions.

Do I have to pay for it if I need reasonable accommodation under ADA?

Generally, no. The ADA requires the employer to provide the accommodation unless doing so would cause an undue hardship on the employer’s business. If the cost of providing the needed accommodation would be too much, you must be given the choice of:

• Providing the accommodation yourself, or
• Paying for the portion of the accommodation that causes the undue hardship

An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar jobs. Typically, employers don’t pay a lot to accommodate employees with disabilities. When asked, employers noted that most accommodations cost nothing; the rest typically cost only about $500.

If the health insurance offered by my employer does not cover all medical expenses related to my disability, does the company have to get extra coverage for me under ADA?

No. The ADA only requires an employer to provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees. The same is true for employees with cancer or for employees who have family members with cancer or a history of cancer.

Under ADA, does an employer have to make non-work areas used by employees, such as cafeterias, lounges, or employer-provided transportation, accessible to people with disabilities?

Yes, unless making these changes would pose an undue hardship on the employer. Employers must accommodate the disabled person for all services, programs, and non-work facilities they provide, if the changes are reasonable. If making an existing facility accessible would be an undue hardship, the employer can provide a comparable facility that will let a person with a disability enjoy the same benefits and privileges of employment as those enjoyed by other employees, unless doing so also would be an undue hardship.

What should I do if I think I’m being discriminated against in a work situation because of my disability?

If you think you have been discriminated against at work because of a disability, you can file a complaint with an Equal Employment Opportunity Commission (EEOC) field office located in certain cities throughout the United States. If you work for a state or local government, the process is the same as for a private employer. You can contact the EEOC at 1-800-669-4000.

How the ADA can help in settings other than work

The ADA defines public accommodations as those that are generally open to everyone, such as restaurants, hotels, theaters, doctors’ offices, drug stores, retail stores, museums, libraries, parks, private schools, and day care centers.

Private clubs and religious organizations are not considered places of public accommodation. They don’t have to meet the ADA requirements.

The ADA requires the property administrators of these kinds of public places to remove barriers when it’s “readily achievable” to do so. This means that it must be fairly easy to do without much trouble or expense. Examples of removing barriers would include making a simple ramp over a few steps or other modest adjustments to parts of a public place’s physical structure that may impose barriers for people with disabilities.