What are My Rights as an Employee With Cancer at Work?

In California, as an employee with cancer at work you have many rights.

Under California’s Fair Employment and Housing Act (FEHA), (California Government Code section 12900, et seq.) it is an unlawful practice for an employer because of a Medical Condition to discharge a person from employment or discriminate against that person in terms of compensation or privileges of employment. Under FEHA, the term “medical condition” includes “Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.” California Government Code section 12926(i)(1). This means you have a right not to be treated differently (less favorably) by your employer than other employees are treated just because you have been diagnosed with cancer or have a history of having cancer. You have a right to receive any promotion you would otherwise be entitled to receive. It is unlawful for your employer to deny you a promotion merely because you have been diagnosed with Cancer. You have a right to receive any increase in pay you would otherwise be entitled to receive. It is unlawful for your employer to deny you an increase in pay merely because you have been diagnosed with cancer. So long as you can do your job, you have a right to the same compensation and privileges of employment as an employee in the same or similar job position who has never been diagnosed with cancer. Note: the foregoing does not apply if you work for a very small employer that has less than five employees.

Under FEHA, it is an unlawful practice for an employer, or any other person in the workplace, because of a medical condition to harass an employee. California Government Code section 12940(j)(1). Harassment is uninvited and unwelcome, offensive or abusive conduct that is based on a protected personal characteristic such as an employee’s medical condition. This means you have a right not to be harassed by your employer or by any other person in the workplace because you have been diagnosed with cancer or have a history of having cancer. You have a right not to be harassed because of your cancer diagnosis even if your medical condition makes it harder for you to do your job. You have a right not to be harassed because of your cancer diagnosis even if your medical condition causes you to miss more work than you did before your diagnosis. Note: unlike with discrimination, the foregoing applies and you have a right not to be harassed regardless of the size of your employer. This means, even if you are the only employee working for the company, you have a right not to be harassed by your employer or by any other person in the workplace because you have been diagnosed with cancer or have a history of having cancer.

Under FEHA, it is an unlawful practice for an employer to fail to engage in a timely, good faith, interactive process with an employee who has cancer to determine effective Reasonable Accommodations the employee needs because of his or her cancer diagnosis. California Government Code section 12940(n). This means, if, because of your Disability or medical condition, you are unable to perform certain of your job duties, but with a little help from your employer you could otherwise do your job, you have a right to ask your employer for a reasonable accommodation. Your employer is then obligated to engage with you in a good-faith, interactive process (which includes the exchange of information and open communication) to identify something your employer can do so that you can continue working despite your cancer diagnosis. An example of a reasonable accommodation could be providing you with a more comfortable chair or reassigning the more physically demanding tasks of your job to another employee. Note: the foregoing does not apply if you work for a very small employer that has less than five employees.

Under the California Family Rights Act (California Government Code sections 12945.1, 12945.2, and 19702.3), if you have worked for your employer for at least twelve (12) months and have worked at least 1,250 hours for your employer in the past twelve (12) months, you have a right to take a leave of absence for as much as twelve (12) workweeks if you cannot work because of any health impairment related to or associated with a diagnosis of cancer. At the end of your leave of absence under the California Family Rights Act, you have a right to be reinstated to your previous job position or to be assigned to a comparable job position. You have a right during your leave of absence under the California Family Rights Act to retain your status as an employee and the leave of absence shall not reduce your seniority. California Government Code section 12945.2(f). You may take your leave of absence under the California Family Rights Act in one continuous period of time of up to 12 workweeks if that is what you need to recover from surgery or treatment and return to work. However, you may instead take your leave of absence on an intermittent or reduced leave basis if that will enable you to take time off when you are not feeling well because of your medical condition or to attend scheduled doctor visits or treatment. Intermittent leave is leave you take in separate blocks of time. A reduced leave schedule reduces your usual number of working hours per workweek, or hours per workday. Regardless of whether your leave of absence under the California Family Rights Act is taken in one continuous period of time, or on an intermittent or reduced leave schedule basis, your leave of absence cannot exceed 12 workweeks in a 12-month period. California Code of Regulations, title 2, section 11090. Note: the foregoing does not apply if you work for a very small employer that has less than five employees.

Even if you do not qualify for a leave of absence under the California Family Rights Act, or if you have already exhausted your allotment of 12 workweeks of leave under the California Family Rights Act, you may be entitled to a leave of absence as a reasonable accommodation under FEHA.

If your employer has terminated your employment or otherwise discriminated against you because you have been diagnosed with cancer or because you have a record or history of cancer, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.