Triage Cancer

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© 2016 Triage Cancer
JamesCare for Life Survivorship Conference
Employment Rights
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© Copyright 2016 Triage Cancer© Copyright 2016 Triage Cancer
Monica Fawzy Bryant, Esq.
Cancer Rights Attorney &
COO, Triage Cancer
This presentation is intended to provide general information on the topics presented. The author is not engaged in
rendering any legal, medical, or professional services by its publication or distribution. Although this content was
reviewed by a professional, it should not be used as a substitute for professional services.
Employment Rights
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© Copyright 2016 Triage Cancer
FROM CANCER PATIENT TO CANCER SURVIVOR:
LOST IN TRANSITION
• Identified key elements that should be included in a
Survivorship Care Plan:
– Specific tissue diagnosis and stage;
– Initial treatment plan and dates of treatment;
– Toxicities during treatment;
– Expected short- and long-term effects of therapy;
– Late toxicity monitoring needed;
– Surveillance for recurrence or second cancer;
– Who will take responsibility for survivorship care;
– Psychosocial and vocational needs; and
– Recommended preventive behaviors/interventions.
Institute of Medicine Report - 2005
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Psychological and social problems created or exacerbated by
cancer, including:
• depression and other emotional problems;
• lack of information or skills needed to manage the illness;
• lack of transportation or other resources; and
• disruptions in work, school, and family life
cause additional suffering, weaken adherence to prescribed
treatments, and threaten patients' return to health.
Institute of Medicine Report - 2007
CANCER CARE FOR THE WHOLE PATIENT:
MEETING PSYCHOSOCIAL HEALTH NEEDS

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Employment Rights
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• 98% of cancer survivors experienced the
physical (i.e., pain), emotional (i.e., emotional
distress) and practical (e.g., financial) concerns
of post-treatment survivorship
• Only 20 percent of survey respondents received
help with their practical concerns
• Alarmingly, the # of people NOT getting care for
physical, emotional or practical concerns
increased between 2006 and 2010
Livestrong Survey - 2010
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From the health care professional perspective:
• 77% of oncology social workers and nurses surveyed by Triage
Cancer (2013-2014) said it was important to include employment
issues in distress screening tools
From the patient perspective:
• Patients don’t know what they don’t know
– Overwhelmed
– Don’t think the healthcare team can help, so they don’t bring it up
– More likely to be offhand comments
– Privacy concerns, embarrassed by financial issues
Why Incorporate Clinical “Legal”
Assessment?
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Open-ended questions
• What type of insurance do you have?
• What type of work do you do?
• Do you have any concerns about working through treatment or
taking time off?
• Do you have questions about your insurance coverage?
• Are you concerned about disclosing your diagnosis at work, at
school, or to other people in your life?
• What is your family environment like?
• Do you have a strong support system?
*Cancer and Careers checklist
Incorporating Clinical “Legal” Assessment?

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• After college, Erin worked as an assistant at a large company for 3 years.
At the age of 24, she was diagnosed with cancer.
• After talking with her healthcare team, she decided her best course of
action was to take some time off work. When she shared her diagnosis
with her employer, she was told that she would be let go.
• Erin took COBRA to keep her health insurance coverage, but her 18
months are up and she is concerned about how to get insurance coverage
with a pre-existing condition.
• Erin is now 26 and is ready to get back into the workforce, especially since
she has student loans to pay back, and a pile of outstanding medical bills.
• She isn’t sure how to deal with the gap on her resume, and how to address
it in an interview. Or if she even has to.
• Erin also has monthly medical appointments and has been experiencing
chemo brain. She is worried this will keep her from getting a job.
Meet Erin
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Putting The Pieces Together
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Federal Law
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22
33
44
55
1
2
3
4
5
The Whole Picture
State Law
Finances & Insurance Coverage:
Health, Disability, Life, Etc.
Employment Contracts
Workplace Culture & Employer
Policies

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Employment Rights
Federal Fair Employment Laws
- Americans with Disabilities Act (ADA)
• Discrimination protections for patients and caregivers
• Reasonable Accommodations for patients
- Rehabilitation Act of 1973
State Fair Employment Laws
• Discrimination protections for patients and caregivers
• Reasonable Accommodations for patients
Leave Laws
- Federal Family & Medical Leave Act (FMLA)
- State Leave Laws
Employment Contracts
• Employment & Union Contracts
*Triage Cancer Quick Guides & Chart of State Laws
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Employment Benefits
• Employee Benefits
– Health/dental/vision insurance
– Short-term and/or long-term disability insurance
– Life and/or accidental death insurance
• Other Benefits
– Sick time
– Vacation time or paid time off (PTO)
– Pool of donated hours
– Flex time/job sharing/telecommuting
– EAP programs
• Medical Leave Process
• Reasonable Accommodation Process
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Eligibility
• Private employers with 15 or more employees
& State/Local Governments
• Note: Federal employees covered by Rehabilitation
Act of 1973 (similar to ADA)
• ADA does not apply to tribal employers
• Be a “qualified individual”
• “Can perform essential functions of the job with or
without a reasonable accommodation”
• Have a disability under the ADA’s definition
Americans With Disabilities Act (ADA) –
Title I

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Definitions
• Disability:
• “A physical or mental impairment that substantially
limits one or more major life activities”
• Major life activity
• Eating, breathing, speaking, walking
• ADA Amendments: concentrating, thinking,
sleeping, operation of major bodily functions
- Predictable assessments: cell growth
Americans With Disabilities Act (ADA)
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4 ways to use the ADA:
1. Currently
2. History
3. Regarded
4. Association
Applies to all phases of the employment process
Benefits:
• Protection from Discrimination (1 – 4)
– Employers can’t make employment-related decisions based on
medical information
• Reasonable Accommodations (1 & 2)
• Similar rights available in education arena: IDEA & Rehab Act
Americans With Disabilities Act (ADA)
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• Similar to ADA
• But, can be more protective in 3 ways
1. Broader definition of disability
• Ex: CA, IA, IL, NY, WA, WI
2. Specifically list cancer as a potential disability
• Ex: CA, ME, OH, VT
3. Cover employers with fewer than 15 employees
• Ex: CA = 5; NY = 4; IL = 1
*Triage Cancer Chart of State Laws

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1 2 3 4 5 6 8 9 12
AK
HI
IL
ME
MI
MN
MT
NJ
ND
SD
VT
VA
WI
CO
WY
CT IA
KS
NM
NY
OH
PA
RI
CA
ID
MA
MO
NH
OR
KY
TN
WA
AR (but 15
for RA’s)
WV
Employer Size
*If state is not listed, it requires 15 employees
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Managing Side Effects at Work
• Visible vs. non-visible side effects
• What does a patient actually do?
• Figuring out what is the challenging part about work
• Can accommodations help?
• Deciding to share a diagnosis at work
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“Any change in the work environment or
in the way things are customarily done
that enables an individual with a disability
to enjoy equal employment opportunities”
What Are Reasonable Accommodations?

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Reasonable Accommodations
Modifying Work
Space
• Phone, fax, files
within easy reach
• Switching offices
• Special furniture
requests
Modifying
Schedule
• Working from
home
• Part or full-time
• Flexible schedule
• Schedule breaks
• Extended leave
Other Options
• Use of
Technology
• Change in Policy
• Shift Job
Responsibilities
• Change Job
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Disclosure Rights
Generally, not required, but may need to
disclose information to use . . .
• ADA’s discrimination protections
• Reasonable accommodations
• Medical leave
For an in-depth discussion of this issue:
www.cancerandcareers.org/en/community/videos/
BWC-2015/2015-webinar-online
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Employers or prospective employers can ask:
Pre-offer
• Can you perform essential functions of the job?
• How will you perform essential functions of the job?
Post-offer
• Disability-related inquiries or medical exams, regardless
of whether related to job, but only if same for all
employees entering same job category
Employed
• Any disability-related inquiry or medical exam, ONLY if
job-related and consistent with business necessity
Disclosure Rights

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• Federal law for:
- Employees with a serious medical condition
- Employees with a spouse, parent, or child with a
serious medical condition
– Parents
– Spouses (common law spouses & same-sex spouses
as of 3/27/15)
– Minor children (biological, foster, adopted, step, or in
loco parentis)
» 18+ only if “incapable of self-care because of a
mental or physical disability”
Family & Medical Leave Act (FMLA)
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Employer: private employers with 50+ employees (75 mile
radius) and all government employers (federal, state, local)
• 75 mile radius
• No fixed worksite
- Ex: sales rep, truck driver, flight attendant
Employee: 1250 hours, 12 months
• 12 months = total of 12 months in 7 years
• 1250 hours =
- 24 hours in each of the 52 weeks/year; or
- 104+ hours in each of the 12 months/year; or
- 40 hours/week for more than 31 weeks of the year
• What hours of work count toward FMLA?
FMLA Eligibility
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Protections
• Up to 12 weeks leave, per year
• Can be used in segments
• Unpaid leave
• Job protected
• FMLA protects job where sick leave/STD/LTD don’t
• Health insurance protected
FMLA Benefits

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Intermittent FMLA Leave
• Can be used in segments
• Using FMLA leave for:
– Follow-up appointments
– Days not feeling well
• Smallest increment of time
– How do employers normally allow
you to take sick time or vacation
time?
– Ex: airline pilot v. IT staff
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• Deciding the year period
• Asking for FMLA & giving notice
- Foreseeable v. unforeseeable
• Can work with the ADA
• Employers can require use of PTO, vacation, &
sick leave
• Employees can request use of PTO, vacation, &
sick leave
• FMLA protects job where sick leave/STD/LTD don’t
FMLA Tips
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State Leave Laws
• FMLA type leave for smaller employers:
• DC, ME, MD, MN, OR, RI, VT, WA
• Expanded definition of family:
• CA, CT, DC, HI, MD, NJ, OR, RI, VT, WI
• Expanded use of FMLA leave:
• CT, ME, MD, OR
• Paid sick leave:
• DC, CT, CA, MA, OR + Cities – see chart
• Federal Contractors - EO
• Unpaid leave to take family members to routine medical visits:
• MA, VT
*

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• Employers CANNOT:
- Ask for copies of medical records
- Put your medical information in your employee file
• Employers entitled to medical certification for RA’s & FMLA
- But diagnosis may not be required
- Patients & healthcare team should be communicating
• Be careful of employer forms and state laws
Medical Certification
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• “Sufficient documentation” to
substantiate that employee has a
disability under the ADA and needs
the requested accommodation
• “Sufficient” = Describes:
– nature, severity, and duration of
impairment,
– activity the impairment limits,
– extent to which the impairment limits
ability to perform the activity or activities,
and
– why a reasonable accommodation is
needed
• Name, address, phone #, and fax
# of health care provider
• Health care provider's type of
practice/specialization
• Approximate date health condition
began and how long it will
probably last
• Description of serious health
condition sufficient to support the
need for FMLA leave
– E.g., symptoms, diagnosis, doctor
visits, medications, continuing
treatment, etc.
What Can an Employer Ask For
FMLA vs. ADA
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Who Can Provide FMLA Certification?
Health care professionals =
- MDs, DOs, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, nurse practitioners, nurse-
midwives, clinical social workers, Christian Science
practitioners;
- any HCP recognized by the employer or the employer's
group health plan's benefits manager

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• Employers can’t contact health care professional, for
additional info, except:
• FMLA: Only to “authenticate” and “clarify”
• ADA: Maybe not w/o employee’s permission
• Recertification
• Asking for extended leave
• Circumstances or conditions have changed
• Return to work certification
FMLA & Medical Certification
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State Leave Laws
• FMLA type leave for smaller employers:
• DC (20), ME (15 pvt, 25 public), MD (15), MN (21), OR (25),
RI (30 for public employers), VT (15)
• Expanded definition of family:
• CT, DC, HI, MD, NJ, OR, RI, VT, WI
• Expanded use of FMLA leave:
• CT, ME, MD, OR
• Paid sick leave:
• DC, CT, CA, MA, OR + Cities – see chart
• Federal Contractors - EO
• Unpaid leave to take family members to routine medical visits:
• MA, VT
*
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Other Pieces to this Puzzle
• Health Insurance
• Adequacy of coverage
• Maintaining coverage
• Effectively using coverage
• Finances
• Disability insurance
• Financial assistance
• Overall financial health
• Caregiver Rights

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Triage Cancer
Triage Cancer provides information and resources on cancer
survivorship issues through:
1. International Speakers Bureau of experts & survivors
2. Educational events
a. Regional cancer survivorship conferences
b. Seminars and in-service trainings
c. Cancer Survivorship Webinar Series
3. TriageCancer.org
a. Educational blog at TriageCancer.org/blog
b. International, national, & state resources
c. Quick guides on employment, disability, & health insurance
Our Speakers Bureau has experts in the areas of medicine, mental health, nursing, social
work, patient navigation, nutrition, oncofertility, law, employment, education, financial
management, insurance, relationships, sexuality and intimacy, pain and palliative care,
advocacy, and other areas of cancer survivorship.
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More Learning Opportunities
• Events (http://TriageCancer.org/Events-Calendar)
• Cancer Survivorship Webinar Series
(http://triagecancer.org/webinars)
• Educational Blog (http://triagecancer.org/blog)
• Resources
• Quick Guides
(http://triagecancer.org/resources/quickguides)
• Chart of State Laws
• International, National, State Resources
(http://triagecancer.org/resources)
• Links to Partner Resources
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Upcoming Webinars
• June 21, 2016 ~ Decoding Medical Bills
• July 14, 2016 ~ Plant Based Eating for Cancer
Survivors: Do's and Don'ts
• August 17, 2016 ~ Anticipatory Grief and End of
Life Care: How to Prepare and Care for Life-
Changing Events
• August 31, 2016 ~ Clinical Trials 101
• September 21, 2016 ~ Making Sense of the
Medicare Maze
www.triagecancer.org/webinars
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Triage Cancer Conferences
http://triagecancer.org/conferences
July 23 ~ Nashville, TN
August 6 ~ Philadelphia, PA
October 8 ~ Salt Lake City, UT
Free for patients, caregivers, survivors, advocates & health
care professionals (FREE CEUs)
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Employment Resources
CancerandCareers.org
• Free Resume Review Service
• Free Career Coaching
• Balancing Work & Cancer Webinars
• Educational Series for Healthcare Professionals (webinar)
• National Conference on Work & Cancer
• Scholarships
• West Coast Conference on Work & Cancer – In CA 10/15
Flexjobs.com
• Part-time and telecommuting jobs

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Employment Rights & Options:
• Equal Employment Opportunity Commission www.EEOC.gov
• Job Accommodation Network www.AskJan.org
• U.S. Department of Labor (COBRA) www.dol.gov/EBSA
• U.S. Department of Labor (FMLA) www.DOL.gov/WHD
• FlexJobs: www.flexjobs.com
• Workplace Transitions: www.workplacetransitions.org
Disability Insurance Rights & Options:
• Social Security Administration: www.SSA.gov
• National Organization of Social Security Claimants’
Representatives (NOSSCR): www.nosscr.org
Legal Assistance:
• National Cancer Legal Services Network www.NCLSN.org
• LawHelp www.lawhelp.org
• Lawyer Referral Service:
http://apps.americanbar.org/legalservices/lris/directory
Additional Resources
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Questions
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Contact Information
Email
mb@TriageCancer.org
Website
http://TriageCancer.org
Twitter
@TriageCancer
Facebook
www.Facebook.com/TriageCancer
Blog
http://TriageCancer.org/blog

Triage Cancer

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