BC, workplace accommodations, EEO/discrimination, etc
Many of us have encountered workplace "challenges" while confronting breast cancer. There are a number of threads on BC.org which discuss related topics. I thought it might be nice to have a thread that seeks to share press coverage of these issues on an ongoing basis. Links to "self help" resources may also be valuable. While threads aren't a structured research tool, ideally this could serve as a resource for those interested in the topic or trying to do enough research to gain a basic understanding of how workplace rights and responsibilities may apply to them… at least enough to identify relevant issues, frame a discussion and advocate for oneself. Please share resources that you have found useful. "Lessons learned" may be helpful, too. Thanks!
PS: BC.org offers a "Breast Cancer and Your Job" page here: https://www.breastcancer.org/tips/your_job
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Maryland: EEOC Sues Stanley Black & Decker
Stanley Black & Decker Inc., a global diversified industrial company, violated federal law when it terminated an employee with cancer who took leave for medical treatment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
https://www.eeoc.gov/eeoc/newsroom/release/8-17-18...
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Federal Court Delivers EEOC A Victory Over UPS In ADA Lawsuit Regarding Pay
A federal district court in Kansas recently granted the EEOC's motion for judgment on the pleadings in an ADA lawsuit brought against UPS and an employee union, holding that a policy in Defendants' collective bargaining agreement where drivers who are disqualified for medical reasons can only be compensated at 90% of their rates of pay for temporary non-driving jobs, while drivers disqualified for non-medical reasons such as DWI's are compensated at a 100% rate, was facially discriminatory. This ruling should {alert} employers in regards to ensuring their policies relative to medical disqualifications and compensation are ADA-compliant.
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Lumpie - GREAT IDEA! I have had so many women write me who have had workplace issues! This will be a great resource of gathering information!
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For those looking for resources related to working during and after cancer, Cancer and Careers, is a useful site:
https://www.cancerandcareers.org/en
(they also have a Spanish language site - link is at top right corner of English page)
"As the definitive national authority on work and cancer, Cancer and Careers empowers and educates people with cancer to thrive in the workplace. Our innovative programs for survivors and healthcare professionals provide the vital support, tools, and information they need to navigate the practical and legal challenges that follow a diagnosis."
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This is another resource I have found to be helpful:
Cancer Legal Resource Center
http://cancerlegalresources.org/
"Cancer Legal Resource Center (CLRC) is a program of the Disability Rights Legal Center (DRLC), a 501C-3 non-profit, public interest advocacy organization that champions the civil rights of people with disabilities as well as those affected by cancer and other serious illness. DRLC's Cancer Legal Resource Center provides information through its national telephone assistance line, outreach programs and community activities to educate and to support cancer patients, their families, healthcare professionals and advocates on matters like maintaining employment through treatment, accessing healthcare and government benefits, taking medical leave and estate planning. For a person with a cancer diagnosis, these issues often result in worry and confusion, which can be overwhelming. When left unaddressed, patients may survive treatment to find their homes, jobs or insurance coverage gone. When information is readily and easily accessible, quality outcomes for patient survivorship improve as stress and anxiety decrease."
They offer some good webinars (under the publications tab).
Some information is available in Spanish. i.e.: http://cancerlegalresources.org/publications-webin...
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Thanks, Denise! I really hope that this is helpful to others!
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Job Accommodation Network (JAN)
The Job Accommodation Network (JAN) is the leading source of free, expert, and confidential guidance on workplace accommodations and disability employment issues. Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace.
JAN represents the most comprehensive job accommodation resource available. From Fortune 500 companies to entrepreneurs, JAN has served customers across the United States and around the world for more than 35 years. Its consultants are thought leaders and innovators on disability employment issues, and all have earned at least one Master's degree in their specialized fields, ranging from rehabilitation counseling to education and engineering.
JAN is funded by a contract from the U.S. Department of Labor, Office of Disability Employment Policy (ODEP) (#1605DC-17-C-0038). Its development has been achieved through the collaborative efforts of ODEP, West Virginia University, and private industry throughout North America.
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Upcoming Webinar:
Balancing Work & Cancer Webinar: Working Through Treatment
Presented by Cancer & Careers
Wednesday, October 10, 2018 — 6:00 PM ET/3:00 PM PT
https://www.cancerandcareers.org/en/community/even...
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Cancer & Careers has some great videos of prior webinars available. You can watch them here:
https://www.cancerandcareers.org/en/community/vide...
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Workplace Wellness Programs: Uncertainty as 2019 Approaches
Reported by: Mid-Atlantic ADA Center
https://www.natlawreview.com/article/court-case-cr...
This article reports on the D.C. District Court decision ordering the U.S. Equal Employment Opportunity Commission (EEOC) to reconsider rules on employer wellness programs that require employees to undergo medical exams or answer disability-related questions. Such programs must be "voluntary" for employees.
The EEOC issued rules in 2016 under both the ADA and the Genetic Information Nondiscrimination Act (GINA), which allowed employers to offer incentives or impose penalties, up to 30% of the cost of an employee's health plan, for employees who decline to participate.
The AARP sued the EEOC, arguing the 30% incentive/penalty was so significant it would render a wellness program involuntary.
The court let the rule stand during a reconsideration period, but the period will end January 1, 2019.
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"EEOC Sues Corizon Health Care Companies for Disability Discrimination"
Reported by: Mid-Atlantic ADA Center
https://www.eeoc.gov/eeoc/newsroom/release/9-19-18...
The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against nationwide health care companies Corizon Health Inc., and Corizon LLC, alleging the companies violated the ADA by requiring employees to be "100% healed" before they could return to work following medical leaves, and failing to consider the provision of reasonable accommodations. Corizon provides health care services to jail and prison inmates in 518 correctional facilities across 26 states.
The EEOC also charged that Corizon subjected employees to a hostile work environment based on disability and retaliated against employees because they complained about discrimination.
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"Medstar Washington Hospital Center and Medstar Health Sued by EEOC for Disability Discrimination and Retaliation
Reported by: Mid-Atlantic ADA Center
https://www.eeoc.gov/eeoc/newsroom/release/9-19-18...
The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Washington Hospital Center Corporation, doing business as MedStar Washington Hospital Center and MedStar Health, Inc., charging the organization with violating the ADA by refusing to reassign or otherwise bring back to work a patient care technician who was injured on the job.
"A company cannot deny employment opportunities to an employee with a disability because it anticipates it may have to accommodate her in the future. The EEOC is committed to enforcing disability discrimination law."
"Reassignment can be a reasonable accommodation for an employee who can no longer perform the duties of his or her current position because of a disability, and requiring an employee in that situation to compete for other jobs just like any other applicant is no accommodation. Employers who do not make an active effort to accommodate the known limitations of employees with disabilities risk discrimination suits such as the one the EEOC has filed here."
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EEOC Sues Appalachian Wood Products, Inc. For Disability Discrimination
Employer Made Unlawful Medical Inquiries and Refused to Hire Applicants Based on Disability, Federal Agency Charges
Refusing to hire a qualified individual because of his disability, record of disability or because the employer perceives a person as being disabled violates the Americans with Disabilities Act (ADA). "Federal law prohibits employers from subjecting applicants to pre-job offer medical exams or inquiries, and strictly regulates post-offer medical examinations, so that applicants can be fairly evaluated on their actual qualifications," said EEOC Regional Attorney Debra M. Lawrence. "Employers risk violating the law if they make employment decisions based on unfounded fears or generalized assumptions about an applicant or employee's disability or the possible effects of their medical treatment."
https://www.eeoc.gov/eeoc/newsroom/release/10-9-18...
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I think that this "article" is pretty much a press release, but it may be helpful to some because it enumerates benefits that may be available under private disability insurance policies for those who wish/plan to return to work. Things like:
- Coordination with the employer to help the employee return to work
- Identification of adaptive equipment or job accommodations that could enable the employee to resume job duties
- A vocational evaluation to determine how the employee's disability may affect his or her employment options
- Job placement services
- Resume preparation
- Job-seeking skills training
Worth checking out if these are services from which you might benefit.https://www.ahip.org/transition-back-to-employment...
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I wanted to encourage other MBC'ers to share your workplace stories at this new discussion:
MBC and Your Job -- what's your story?
https://community.breastcancer.org/forum/8/topics/...
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EEOC Statement on Joint Memorandum on Disability Self-Identification(link is external)
The U.S. Equal Employment Opportunity Commission (EEOC) announced the release of a joint memorandum(link is external) with the U.S. Office of Personnel Management (OPM), highlighting revisions to OPM's Self-Identification of Disability Form for federal workers. Revisions to the form include simplified terminology, better definitions of medical conditions, and allowance for employees to indicate they have disabilities without specifying their medical diagnoses.
https://chcoc.gov/content/resources-disability-sel...
{November 2018}
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"Reassignment: The Often-Overlooked Accommodation of Last Resort"(link is external)
This article outlines the issues and conflicting court rulings on when and how an employer may need to reassign an employee with a disability to a new job.
https://www.natlawreview.com/article/reassignment-...
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How To Ensure ADA Compliance And Stay Off The EEOC'S Most-Wanted List
This article outlines the steps employers should take to ensure compliance with the ADA, highlighting the importance of maintaining comprehensive policies and training managers on ADA issues.
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I found a good YouTube on Social Security Disability benefits, so I am posting the link here and on other forums:
The first part is about what the new cards look like. Skip to the 18 minute mark to see the part on applying for and getting SSDI.
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Lumpie- Thank you for the video. Very informative. But I have a question. The video stated that to apply for SSD they look at ability to perform work activity. If they feel you can do work activity to make at least 1,180/month you do not qualify for disability and the application stops there. You do not continue to the point of the "listings" which would include MBC. So if we are "stable" with our medications and they feel we can continue in the workforce then how do some MBCers get SSD??? Some have posted they have CHOSEN to leave the workforce to focus on family, travel, etc since our life expectancy is shorter, we have mult. doc visits, and are fatigued and they CHOSE to draw SSD. I don't fault them if they choose to do that and can afford it. But how did they qualify?? Sounds like SSD is when our health gets bad and we cannot continue to hold down a job, any job. Like, when we get REALLY BAD. Otherwise we have to continue to work a job, any job.
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Hi candy-678,
Good point. The presenter did not go into much detail on what is called compassionate allowances. MBC is covered under compassionate allowances. Long story short, there are a couple of different way they evaluate people who apply for SSD. Most, they do a complex and detailed evaluation of whether the person is able to work, as you describe above. For people with certain diagnoses, including MBC, they never get to that step. If you have the diagnosis, you automatically qualify. It is shown on the flowchart/algorithm - but that is a bit complicated/tedious to work your way thru that algorithm.
Here is the compassionate allowances home page: https://www.ssa.gov/compassionateallowances/
Here is the page with the list of conditions, including "Breast Cancer - with distant metastases or inoperable or unresectable"
https://www.ssa.gov/compassionateallowances/condit...
Sometimes we "don't look sick" and our status can change from day to day. All of which which can make things confusing.
Hope this info helps!
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Thank you Lumpie. I know we have talked about this topic before---even PM'd about it. I am still working. It is just so confusing. And you hear so many versions of how it works. The presenter in this video spoke clearly and no he didn't really go into the "compassionate allowances" but he did mention "listings" and the flowchart showed if you were able to work the process stops there and you are denied for coverage. If I would quit my job ( my choice ) and then apply, wouldn't they ask why I left my employer. If I said I wanted time with family, etc I could see them saying I COULD work but don't want to and would be denied. My physician could not state I am unable to work, because I am. I could see Soc. Security telling me to go to work at McDonalds or be a cashier at a store vs giving me benefits. It would be great if they really would allow me to qualify for benefits. I have been in the workforce and contributing to Soc. Security since I was 15 years old and I am now 48----33 years working. And what about the 'out of work for 5 months' thing?? I thought you had to not work anywhere for any amount of time for 5 consective months or more. The presenter didn't mention that. Also is the $1,180/month salary you are allowed to have and still qualify for benefits gross or net pay?? I think they make it confusing on purpose. Loop holes to deny coverage.
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candy-678, It can be confusing. If you decide to apply for SSDI, assuming you are MBC, the decision about whether you qualify should be made solely on your diagnosis. The law says you are entitled to benefits if you have a stage 4 diagnosis. I have done a fair amount of research and, though anecdotal, it seems that the vast majority of MBC applicants sail right through the process. If you should be denied, there is an appeal process. I have never heard of an applicant being denied on appeal. Again, it is not discretionary. You are entitled to benefits based on your diagnosis. Given that there is virtually no possibility that any of us diagnosed young can expect a normal period of retirement, this entitlement seems appropriate to me. After all, we have paid into the system. (Much like you, I started paying into the system via summer and part time jobs when I was 12. I have paid in for almost 40 years.)
As far as work goes, my impression is that MBC applicants typically are not working at all when they apply. As long as you are earning less than the threshold ($1,1,80 per month), it should "count" the same as not working at all. But like you said, this might raise questions - even though it shouldn't. If you are working and earning more, you will not qualify. If you should choose to apply, you should not need to get into a discussions about family priorities, etc. Even if true, it's not relevant so don't go there in discussions the SSA. If asked, you should focus on your diagnosis and the complications you do face working. For most of us, it is stressful which can interfere with healing, there are challenges arranging time off for medical appointments. We can become so fatigued that all we do is sleep when we have a moment off. Our sub-optimal health may keep us from doing an effective job. And, frankly, some employers may not want us at work for a variety of reasons. But what is really relevant is your diagnosis.
Also, your doctor does not have to "endorse" your application or attest to your inability to work. You just have to show from your medical records that you have the diagnosis. It is my understanding that your doctor does not even have to fill out a form.
You can and should apply for SSDI as soon as you stop working. Here's the five month provision: "If you are eligible for Social Security disability benefits, there is a five-month waiting period before {Social Security} can begin your benefits. We will pay your first benefit for the sixth full month after the date we find your disability began."
Remember, you can decide to go back to work any time your health allows. And after you have been out on disability for a certain period, you can return to work under special provisions which allow you to retain Medicare benefits. For a period of time (5 years, I believe), if you find that your health does not permit you to continue to work, you can return to disabled status without having to wait the 5 months again. Many of us would be interested in going back to work either full or part time if we had an appropriate opportunity. Read more about the "Ticket to Work" program here: https://choosework.ssa.gov/index.html
If you have the luxury of time, something to think about before leaving work is your plans for healthcare long term. Most employees are entitled to COBRA coverage. If you leave because of a disability, you can continue your COBRA coverage until you qualify for Medicare after 24 months, but you have to provide timely and proper notice to your employer (I believe it is within 60 days of concluding work - but check carefully). A few lucky people who work for large companies may continue to have access to work-based insurance as a "medical retiree" but this is unusual. Once we qualify for Medicare (after 24 months), in many states, we are not entitled to Medigap coverage so that can leave us on the hook for substantial medical expenses. Check carefully to find out what options are available where you live. It is my understanding that if we qualify for COBRA coverage and later Medicare, then we do not qualify for ACA coverage. But there is some "gray area" there. I found information saying that we may be able to continue (unsubsidized) ACA coverage if obtained BEFORE we qualify for Medicare. While expensive, this could at least provide maximum out of pocket protection - which could be critical if our therapies are expensive.
If you just want some time off but not permanent disability, you might think about whether some FMLA time (up to 12 weeks) would address your needs. Unless you work for a very small company, most employees are covered by this law. Sometimes a disability plan at work would provide income for FMLA time off. It would require a form that your physician has to complete. And different employers handle requests differently, but for some people, FMLA time could allow you to have some time off to .... do what you need to do.... {Side note about workplace disability policies: if you change employers after your diagnosis, most disability (income protection) policies will not cover your time out of work due to pre-existing conditions - even if you are paying premiums.}
I didn't mean to go on so long. But lots to cover here.
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Lumpie- Thank you for all the information and explaination. I am able to continue work for now. I am 'stable' and even though there are uncomfortable times---pain, fatigue, etc.--it is doable. I think I have decided when there is progression/and change in treatment plan I may revisit SSD application then. I just pray when that time comes and I stop work and apply I don't get the 'loop hole' situation and they deny coverage. Then I would be out of a job AND no benefits coming. Really screwed. I just don't see how so many in the community get disability (SSD) for lesser things--a hurt shoulder, bad back, anxiety. ( Not to simplify their issues, I don't walk in their shoes ) I talk to people and they say "I am disabled and on SSD" and they are running around town, going to activities, etc. I am Stage 4 and still work full time and afraid will be denied coverage. That Soc. Security will say I can do SOME type of work and stay in the workforce. I guess time will tell. I am keeping your posts to refer back to when the time comes for me to apply. To help me in the application process.
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Gratuitous share: Someone posted this on another site and I am sharing because it is just what I needed!
"We must be willing to let go of the life we have planned, so as to have the life that is waiting for us." ~ E.M. Forster
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candy-678 - That sounds like a totally reasonable mindset to me. I have been using a similar guideline: work until progression or some bump in the road that changes my situation. I really appreciate that these posts create a permanent reference that we can share and come back to. Good luck with everything!
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Lumpie, thank you for starting this thread that is very informative and helpful! I have been stable but recently has had to deal with a lot of stress at work, to the point that I felt something was wrong with my health and requested a scan. The scan found a new small spot on my liver. My onc said we should watch and rescan a few months later. We did and it has not increased in size. As a result of all of that and the incredible amount of stress and changes happening at work, a friend suggested I request an accommodation to work from home. So I did. However my work is known not to be supportive and not to accommodate easily although manh of my colleagues work from home based on previous operational needs. There is a whole process about it and it makes me very nervous because I really need my job and I have been told that the accommodation team basically grills you with questions and tries to find a reason not to accommodate.
I have no idea what to expect from meeting with them as I have already filled out all the paperwork stating my disability being metastatic cancer and the need for a stress-free environment to prevent a recurrence? Do you have any recommendations or advice?
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Follow up to post above:
Stanley Black & Decker Will Pay $140,000 to Settle EEOC Disability Discrimination Suit(link is external)
Stanley Black & Decker Inc. will update its reasonable accommodation policies and train management staff, as well as provide $140,000 in monetary relief to a former employee of its Towson, Maryland facility. The U.S. Equal Employment Opportunity Commission (EEOC) had charged the employer with violating the ADA when it refused to grant unpaid leave to a sales representative who needed time off for cancer treatments.
https://www.adainfo.org/e-bulletin/e-bulletin-marc...
https://www.eeoc.gov/eeoc/newsroom/release/03-05-1...
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"Need to Know: What Are Disability Laws?"
This article outlines a variety of federal disability laws, including the ADA, that may be of interest to individuals with chronic or invisible conditions such as multiple sclerosis (MS) {or cancer}.
https://multiplesclerosisnewstoday.com/2019/04/03/need-to-know-what-are-disability-laws/
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Trump's Budget Is Full of Cuts Aimed at People With Disabilities
"The Trump administration's fiscal year 2020 budget would make cuts across multiple agencies and offices that serve Americans with disabilities, stripping them of essential resources. Of particular urgency to me and many of my colleagues are the devastating impacts that the weakening of these agencies would have on job seekers with disabilities.
"... on the chopping block... is the Office of Disability Employment Policy. This office, within the Labor Department, is the only nonregulatory federal agency that promotes policies and coordinates with employers and all levels of government to increase workplace success for people with disabilities.
"...any budget proposal by any administration should reflect the goals of the A.D.A.: equal opportunity, independent living, full participation and economic self-sufficiency. The exclusion of any group of people from our economy is not only a problem for those who've been excluded. It's a scourge on our democracy that touches us all."
This opinion piece by Tom Ridge is dated 4-17-2019.
https://www.nytimes.com/2019/04/17/opinion/disability-budget-cuts-trump.html
(Without subscription, NYT allows a limited number of accesses per month.)
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