[00:00:00] Adam Walker: From Susan G Komen, this is Real Pink, a podcast exploring real stories, struggles and triumphs related to breast cancer. We’re taking the conversation from the doctor’s office to your living room.
Welcome to the Komen Wellness Within podcast series, where we’ll embark on a transformative journey together, exploring various dimensions of wellness tailored specifically for breast cancer patients from physical and emotional health to nutrition, mindfulness, and self care practices. We’ll delve into the most effective strategies and empowering stories that inspire resilience.
Breast cancer affects patients, survivors, families, and health care professionals in many ways, one of them being the law. When someone receives a diagnosis, their job is often the first place they may be legally impacted. Our jobs provide us with income and health insurance. Therefore, it’s important to know your rights in the workplace so that you can protect yourself and have the knowledge of how to ask for what you are legally entitled to. Joining us today on the show is Shelly Rosenfeld, Director of the Cancer Legal Resource Center. She’ll help explain your rights to take time off, the anti discrimination laws that apply both to an employee and an interviewee, and what reasonable accommodations are under federal and state laws. Shelly, welcome to the show!
[00:01:31] Shelly Rosenfeld: Thank you. I’m glad to be speaking with you today.
[00:01:34] Adam Walker: Well, I’m really glad to tell you this is something that I’ve honestly wondered about quite a bit. And I imagine a lot of other people have as well, and I think this is going to be very enlightening. So, to start with, can you tell us a little bit about the Cancer Legal Research Center and what you do there?
[00:01:49] Shelly Rosenfeld: Yes, I am director of the Cancer Legal Resource Center. It is a program of the 501c3 nonprofit Disability Rights Legal Center. We provide free legal resources to people affected by cancer nationwide. We have a national telephone assistance line where someone calls or fills out an online intake about a legal issue or legal issues related to cancer. We do research for them and provide information about their legal rights.
[00:02:20] Adam Walker: That’s fantastic. That’s such an important service and I didn’t even know that it existed and that’s why we’re talking about it. That’s so great. I love that. Okay, so then what are some of the cancer related issues that our listeners might need to consider after receiving a diagnosis?
[00:02:35] Shelly Rosenfeld: Well, there are so many different legal issues, but here are just some of them: employment rights, such as taking time off from work and reasonable accommodation in the workplace, advanced planning, health insurance benefits, government benefits, such as Social Security. So it impacts so many different areas of life.
[00:02:54] Adam Walker: Let’s talk about rights at work and workplace protections, because this is often the first place that people may be legally impacted. So, can you start by talking to our listeners about their right to take time off work?
[00:03:06] Shelly Rosenfeld: Sure. So, first of all, of course, someone might have sick days in connection with their job, but, what we’re really talking about is FMLA, or Family Medical Leave Act. And it allows certain employees to take up to 12 work weeks per year to take care of themselves or certain family members with a serious health condition. And of course, cancer could be considered a serious health condition when we talk about certain family members it could be a spouse, parent or child. FMLA is unpaid, which I understand is very difficult for so many people, but your job has to stay open for you at the end of that 12 week period, and your employer has to keep providing your health benefits, at the same rate that they were providing it while you worked full time. So there are certain rules that pertain to FMLA. You have to make sure that you work for a covered employer. And that you’re a covered employee and employer, a covered employer has to have 50 or more employees within a 75 mile radius and it applies to also all public agencies as well. A covered employee has to work for a total of 12 months. And so, before being able to take that leave and at least 1, 250 hours in the last 12 months, but that actually can include potentially someone that’s working part time.
[00:04:31] Adam Walker: Okay. So I just want to make sure I heard this right. So FMLA, you can take up to 12 weeks unpaid off for a major medical issue. That’s what you’re saying. And there’s a certain criteria by which you qualify for it, but that’s the basic idea, right?
[00:04:47] Shelly Rosenfeld: Exactly.
[00:04:47] Adam Walker: Okay. And so if someone is going to take FMLA leave, do you have any tips about how to talk to their employer about that?
[00:04:55] Shelly Rosenfeld: Sure. I think that, first of all, it’s helpful to think about that, of course, if someone’s a covered employee, which we just learned and work for a covered employer and of course, you don’t have to remember that, all those details, it’s easy to look up. It’s just good to know that there’s a little bit more details that you just check the CLRC, of course. And you’re allowed to take those 12 work weeks per year. But it’s important when someone’s talking to their employer to know that they don’t have to take the 12 weeks all at once.
That’s kind of a common misconception. So the leave can be taken all at once, or it can be taken intermittently, totaling 12 weeks in a full year. So when undergoing treatment, it’s important to really consider which of these options are best. And then someone can approach their employer accordingly.
For example, taking a full 12 weeks to undergo and recover from surgery is the best idea, but for others who have several rounds of treatment, like chemotherapy, spending or spreading leave intermittently, for example, may make more sense. So that’s a tip when speaking to the employer. And then another aspect in speaking to one’s employer is that if someone is unable to return to work after FMLA leave, the employer is not required to reinstate the employee. But, and we might be talking about this later, but they, an employee may be able to get an extension of FMLA leave through the American with Disabilities Act reasonable accommodation process. It doesn’t mean that it’s guaranteed that they’ll be able to, within that calendar year, get more than 12 weeks, but it is something to consider. In terms of potentially asking for more time, especially if it’s not that much longer and the person really needs it. So something to consider those tips.
[00:06:44] Adam Walker: Yeah, that’s great. And yeah, we certainly going to talk about reasonable accommodations in a minute. But before that. What about, anti discrimination laws at both the state and federal level? Can you walk us through those?
[00:06:55] Shelly Rosenfeld: Sure. So, the American with Disabilities Act, or ADA, it protects individuals with disabilities against discrimination. Now, someone affected by cancer might not necessarily consider themselves disabled. But however, just I’m referring to the legal definition. So it’s the definition under the law that the American with Disabilities Act can cover someone with cancer. So I just want to say that, at the outset. So, while someone who has a disability is not protected against, Layoffs or other actions by the employer that don’t involve disability based discrimination, the law does make sure that employers decisions are based on business needs and not on the desire to get rid of an employee with a disability. So, I think it’s important to remember that it’s not a job guarantee, but someone who is affected by cancer and that cancer, or the effects of that treatment are rising to the level of that someone, it has a major impact on someone’s life.
They could be considered disabled under the American with Disabilities Act, and they cannot be treated differently just because of their cancer diagnosis, or, how it’s considered in terms of being a disability. So they can’t be treated differently. They can’t be fired because of it. If somebody does believe that they have been discriminated against by an employer, when applying for a job or while on the job of course, there’s different categories that somebody could be discriminated against, but for the purposes of our conversation today, we’re talking about disability and cancer can be considered a disability, that they should talk to an employment law attorney and also consider filing a charge of discrimination with the US equal employment opportunity commission or EEOC.
So, that’s something to keep in mind. And. I just want to say that, it sometimes is something that someone would think to themselves. Wow. It could never happen to them. But unfortunately, there are some employers that do treat someone differently. So, that shouldn’t be part of anyone’s experience with cancer, and many employers are so helpful, but if that’s not the case, that’s where somebody might contact the CLRC, we do research for that.
[00:09:18] Adam Walker: So, so let’s say, someone realizes they have a disability, they have cancer, like, how do you know, or how should they know when they should disclose that disability to an employer or not?
[00:09:25] Shelly Rosenfeld: Sure. So that is a question we often get. And ultimately, the decision of whether to disclose someone’s diagnosis or to have that conversation with an employer is entirely up to that person. If someone said that they do not want to have that conversation, I would say that’s totally fine.
If someone says they do want to have that conversation, I would say that’s totally fine. It is something that is completely a personal decision. There is no right answer. I would say that, of course, even though I’m a lawyer, this conversation is not legal advice, but I will say that I think it’s a good idea, no matter what, that someone who’s thinking about having that conversation, since you can’t unring that bell, that they practice with someone that they care about, and just practice having that conversation and so that when they’re speaking to their employer, or maybe they’re writing to their employer, however they go about it that it’s not the 1st time. Although it will be different than when they’re speaking to someone that they know it will at least they will have been through that experience one time, just talking about it, and thinking about how to approach it the best way possible. Some choose to disclose and be fully transparent and eliminate any element of surprise. If they need to take time off later, others choose not to disclose because although discrimination in the workplace is illegal for those who qualify under the protection, as we just said unfortunate reality is that it still happens. So, I think it’s important to consider for someone to consider whether they think they might need a reasonable accommodation to do their job or they may need time off beyond, their sick days, for example. So, I think that those are considerations someone should have, but I will say it’s a good idea to request any accommodations before work performance is affected. Because if an employer sees someone sleeping at their desk, because of fatigue, of course, or the person just doesn’t show up for work or the person is not allowed to keep food at their desk, but they need to have food and they’re eating or any other reason, the employer doesn’t know and it could be something that could arise to a terminable offense. And then someone has been fired, but, they just weren’t following the rules or they weren’t doing their job. So, if somebody does want to ask for those accommodations, it is a good idea, to share some information.
So it is a difficult decision and ultimately the person has to weigh the risks and benefits. Just like with any other approach in treatment is kind of weighing kind of the pros and cons and seeing what’s best for them.
[00:12:06] Adam Walker: Yeah. Now, and I love what you said about before you have that conversation with your employer, do a practice round with somebody, do a few practice rounds with somebody so that you can almost, you can hear the words coming out of your mouth and you’re prepared, for that conversation. So I really love that idea a lot. So earlier you mentioned the term, reasonable accommodations. I want to dive back into that. So what exactly does that mean?
[00:12:31] Shelly Rosenfeld: Sure. And I know sometimes it’s hard to talk about something that we haven’t yet defined, but now we get to break it down a little bit more. So the American with Disabilities Act or ADA, it protects employees with disabilities from discrimination by certain employers based on their disability. So, under the ADA, employers with disabilities like cancer, they’re entitled to reasonable accommodations as we said, and the reasonable accommodations are usually negotiated with the employer on a case by case basis.
So, for example, reasonable accommodation can include some time off of work, it could be working remotely on, for example, on a short term basis, temporary job reassignment, possibly changing an employer policy. If these things would not cause the employer undue hardship. So, to be considered, first of all, to be considered disabled under the ADA, a person has to have a physical or mental impairment that substantially limits one or more major life activities, have a history of disability, or be a person who’s regarded by others as having a disability. So just to make sure we got that out of the way in terms of information. So if someone, for example, is a cashier and they, it’s often difficult for them to stand for long periods of time. For example, they may wish to ask for a reasonable accommodation of a stool so that they could sit down between customers.
So that’s an example of reasonable accommodation. When employer says, and something’s an undue hardship, it usually means that it’s financially too costly. So, in the example that I gave somebody and also, that cashier would not be able to ask for a separate office with a gold plated chair that first of all, they have to be working with customers. The question is, maybe they could get reassigned to a similar job that would not require standing. That’s one consideration, but they would not be entitled to a gold plated chair that I would understand an employer that would say, “Well, that’s an undue hardship, that’s too costly.”
So, I gave obviously an extreme example to illustrate the point, but it really is an interactive process just because the employee asks something, it’s not necessary that, necessarily that it will get completely granted immediately, but, it’s an interactive process where the employer might come back and say, well, I can do this. What you’ve asked for is an undue hardship. Can, would this be okay with you and maybe the employers it’s actually, it is okay. Or no, I’m going to actually need this and then the employer says, okay, well, I can make this work. So it is an interactive process, but don’t lose hope just because it isn’t immediately on the first request everything is granted, but hopefully there’s something that is sustainable. So, that with some modifications that are reasonable for both sides that the employee can keep doing their job in or during a challenging time.
[00:15:33] Adam Walker: Yeah and I love like the idea of just thinking to ask for reasonable accommodations. Because in your example, like if you’re a cashier, because you’ve never had a stool before, because no one else has a stool, you might not consider asking for a stool, but why not? Like, why not ask for that? That is a reasonable accommodation. So, that could carry over into lots of different examples, but I love the idea of kind of think outside of the box. Think about what accommodations you might need and be willing to ask for those things. So, we’ve been talking mostly about an existing workplace, but what if you’re looking for a new job, does some of these things still apply?
[00:16:06] Shelly Rosenfeld: So yes, if someone’s a job applicant on the job search, applicants for jobs do you have rights under the American Disabilities Act, we often think, oh, just when someone’s actually working, but it actually applies, prior to them starting their job. So employers cannot ask about a disability before making a job offer. You do not have to disclose your medical condition unless you’re asking for a reasonable accommodation. So, sometimes somebody may need a reasonable accommodation during an interview for whatever reason, but, in most cases, if somebody is going through treatment in the morning but feels that they would be able to do the interview in the afternoon that they could just tell the potential employer, maybe schedule this in the afternoon. So they might not even need to ask for a reasonable accommodation, but, they may ask for a reasonable accommodation, under the ADA and employers cannot ask about a disability. So I think it’s important to really think about, that employee employees do have rights even before they start their job.
[00:17:11] Adam Walker: Yeah, that’s so important. I really appreciate you sharing that. So this has been, really important, a lot of really great information. If our listeners wanted to get more information, where would they go to find more resources?
[00:17:24] Shelly Rosenfeld: I would say, please go to the Cancer Legal Resource Center website. That’s www.theclrc.org, that’s www.theclrc.org. There are previous webinars and you can also sign up for upcoming webinars. So there is a Know Your Rights series that I’m leading and based on the air date of this podcast, there will still be one more Know Your Rights Webinar, it is supported by a generous grant from CGEN and it’s, the series is, and the upcoming webinar is November 9th, 2023 Advanced Planning and it’s from 12 to 1 PM Pacific. Nobody’s on camera, so you can just relax, have lunch and listen and learn. And, it’s, we also have handouts on our website. And of course, if you go to CLRCintake.org, then you will be able to fill out an online intake, for us to do research for you and provide information about legal rights. So definitely check out our website and everything we do is free no matter what. So, there’s, no cost to checking out.
[00:18:43] Adam Walker: I love that. Well, Shelly, this has been great. I really appreciate the work that you’re doing. It’s so important. Thank you for taking the time to join us on the show today and inform us and hopefully we’re all a little bit better off for it.
[00:18:55] Shelly Rosenfeld: Thank you for having me.
[00:18:58] Adam Walker: And thank you for joining us for another episode of the Komen Wellness Within series. Together we’ll embrace the power of wellness as a catalyst for healing, growth, and renewed vitality. Whether you’re a survivor or caregiver, Komen is here to uplift and guide you towards a future filled with strength, balance, and hope.
Learn more about Komen’s MBC Impact series and watch our wellness videos on Komen.org/MBCseries. Thank you to AstraZeneca, GE Healthcare, Merck, and Walgreens for their support of the Komen MBC Impact series.
Thanks for listening to Real Pink, a weekly podcast by Susan G Komen. For more episodes, visit realpink.Komen.org. For more on breast cancer, visit Komen.org. Make sure to check out @SusanGkomen on social media. I’m your host, Adam. You can find me on Twitter @AJWalker Or on my blog, adamjwalker. com