05 Jun States are Reopening and Employees Are Returning to Work – What do individuals coping with cancer and their caregivers need to know?
Get the latest legal information for individuals diagnosed with cancer and their caregivers.
As states begin to reopen and employees are asked to return to work, many people with a cancer diagnosis, and their caregivers, are questioning what options they have.
What is available to you may depend on whether you are an individual diagnosed with cancer and concerned about how a compromised immune system can increase your risk of getting COVID-19, or if you are a caregiver concerned about exposing your loved one with cancer.
Individuals diagnosed with cancer who are concerned about returning to work due to having a compromised immune system
Your employer has an obligation to make sure that your work place is safe under rules from the Occupational Safety and Health Administration (OSHA) and the U.S. Department of Labor (DOL). OSHA has released this booklet to provide employers with guidance on how to prepare safe workplaces for employees.
There may also be state and local rules that employers must follow, such as social distancing, spacing of work stations, requiring masks, taking employee temperatures, and asking employees to self-report illnesses. And, some employers are establishing their own policies.
However, even with all of these precautions, people with compromised immune systems may still be concerned about returning to work. The first step is to consider what your goals are, before figuring out which laws, protections, and benefits might apply to your situation.
1. Americans with Disabilities Act (ADA) & Reasonable Accommodations: If your goal is to continue working, but want to figure out how to best protect yourself from infection, then you should identify if there are any potential reasonable accommodations that are available to you under the ADA or a state fair employment law.
For example, a change in your workspace (e.g., telecommuting from home or working from a different location), is a potential reasonable accommodation. Most people going through cancer treatment have a compromised immune system, at least for a period of time. So, a request to telecommute for a period of time isn’t unusual. However, because of the uncertain nature of COVID-19 and how long it will take for things to play out, an indefinite request to telecommute may not be seen as a reasonable accommodation. Courts have found that attendance is an essential job function. But we are also in uncharted waters and the landscape is changing day by day. Some employers have even decided to keep their workforce telecommuting indefinitely.
Other examples of accommodations include access to protective equipment or changes in job responsibilities. For example, if you work in a hospital, having access to the most effective PPE may be a reasonable accommodation.
For information about accommodations, visit our Employment Resources We even have a five-minute animated video on managing side effects at work, which explains reasonable accommodations. And, for additional details on accommodations and tips on how to approach employers, we recommend the Job Accommodation Network (JAN) as a resource: www.askjan.org.
2. Paid Time Off: If your goal is to take time off work, there are a few options. If you have any paid time off (e.g., sick time or vacation time) you may consider using that time now. Keep in mind, however, this time off is not job-protected.
3. Emergency Paid Sick Leave Act (EPSLA) through the Families First Coronavirus Response Act (L.116–127)
This new option provides up to two weeks of paid sick leave for employees who are unable to work, or telework, due to one of six possible reasons.
The six reasons are, if:
- the employee is quarantined
- a doctor advises the employee to self-quarantine
- the employee has COVID–19 symptoms and is waiting for a diagnosis
- the employee is caring for an individual under quarantine or medical self-quarantine
- the employee is caring for a child whose school or place of care has been closed or is unavailable due to COVID-19 precautions
The Department of Labor has released guidance clarifying that individuals who have been advised to self-quarantine because they have been exposed to COVID-19 or are particularly vulnerable to COVID-19 and quarantining themselves based upon that advice prevents from working (or teleworking). It is important to note that a doctor’s input is required as the DOL has also said that “you may not take paid sick leave under the FFCRA if you unilaterally decide to self-quarantine for an illness without medical advice, even if you have COVID-19 symptoms.”
For more information about EPSLA, read: Managing Work, Taking Time Off, & Unemployment During COVID-19.
4. Emergency Family & Medical Leave Expansion Act (EFMLEA) through the Families First Coronavirus Response Act (L.116–127)
If you are an employee who is unable to work, or telework, because you need to care for a minor child, whose school or place of child care has closed (or if the child care provider is unavailable) due to COVID-19, you will be eligible for up to 12 weeks of job-protected and health insurance protected leave. Note: this is a new leave reason under the original FMLA. It does not entitle an employee to additional weeks beyond the original FMLA. For more information about EFMLEA, read: Managing Work, Taking Time Off, & Unemployment During COVID-19.
5. Family & Medical Leave Act (FMLA) & ADA:
The FMLA provides eligible employees the ability to take time off for their own serious medical condition or as a caregiver of a spouse, parent, or child. However, your medical condition has to prevent you from being able to work. It is not enough to say that you fear getting COVID-19. Your health care team can help you document any side effects from treatment, including your compromised immune system and explain why those side effects keep you from being unable to work.
- If you do not qualify for FMLA leave, but are eligible under the ADA, you may be able to take time off work as a reasonable accommodation under the ADA or state fair employment law.
- For more information about the FMLA, visit our Employment Resources
6. If your employer has let you go for not returning to work you may qualify for unemployment.
Unemployment is typically run by the state government, and, therefore, each state has different rules. For information about each state’s programs, visit: https://TriageCancer.org/StateResources and the Triage Cancer Charts of State Laws. For example, Michigan’s Governor signed an executive order, which allows individuals who are unable to work due to a compromised immune system to qualify for state unemployment benefits.
Under the CARES Act, Congress provided new federal benefits (Federal Pandemic Unemployment Compensation). Recent guidance from the DOL says “you are likely to be eligible for PUA due to concerns about exposure to the coronavirus only if you have been advised by a healthcare provider to self-quarantine as a result of such concerns. For instance, an individual whose immune system is compromised by virtue of a serious health condition, and who is therefore advised by a healthcare provider to self-quarantine in order to avoid the greater-than-average health risks that the individual might face if he or she were to become infected by the coronavirus will be eligible for PUA if all other eligibility requirements are met.”
For more information about PUA, read Managing Work, Taking Time Off, & Unemployment During COVID-19.
Caregivers of individuals with a cancer diagnosis who are concerned about returning to work due to their loved one’s compromised immune system
- Are you entitled to reasonable accommodations?
No. Under the ADA, caregivers are not entitled to reasonable accommodations. However, in some circumstances you may still be able to ask your employer for accommodations to be made. Many employers are trying to be as flexible as possible during these challenging times.
- Can you qualify for the new paid sick leave law (EPSLA)?
Maybe. If you are caring for a minor child at home whose school, or childcare facility, has been closed and there are no other caregivers available you may be eligible for EPSLA. Additionally, if you are a caregiver for an individual who is self-quarantining, “if a health care provider has advised that individual to stay home or otherwise quarantine him or herself because he or she may have COVID-19 or is particularly vulnerable to COVID-19” and providing that care prevents you from working or teleworking.
The DOL has also issued this guidance about caregivers and EPSLA.
- Can you qualify for the new paid family leave (EFMLEA)?
Maybe. If you are caring for a minor child at home whose school, or childcare facility, has been closed and there are no other caregivers available, you may be eligible for EFMLEA.
- Can you qualify for original FMLA leave?
Maybe. If you are eligible for FMLA and you are acting as a caregiver to a seriously ill child, parent, or spouse. However, according to the DOL “Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.”
- Can you qualify for unemployment if your employer lets you go for not returning to work?
Eligibility for caregivers who lose their job as a result of COVID-19 can apply for state unemployment benefits as well as the additional extended federal benefits through July 30, 2020. Caregivers who are self-employed may also qualify for the expanded eligibility for unemployment benefits under PUA. However, it is unclear if caregivers who are concerned about exposing a family member to COVID-19 and leave their jobs, or do not return to work, would be eligible for state or expanded federal unemployment benefits. State unemployment agencies have been looking at these situations on a case-by-case basis.
Summary of Protections & Benefits
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