Is Cancer a Disability Under the ADA?
As is often the answer to an ADA question – it depends. The answer will depend on several things, and may be different in each situation.
To determine this, an employer would first look at what the definition of disability is under the ADA, and then perform an individualized assessment. The Equal Employment Opportunity Commission (EEOC) has determined three prongs to the definition, and cancer is one that could fall under all three prongs.
- An impairment that substantially limits one or more major life activities.
- Having a record of having a disability.
- Being regarded as having a disability.
Keep in mind that the definition and the resulting coverage is meant to be interpreted very broadly in favor of the person with the impairment. In the Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA, the EEOC cautions that the determination of disability should not require extensive analysis. Also, while there is not an official list of specific disabilities, the EEOC has provided “Rules of Construction” to guide the analysis process. These guides include:
- The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts . An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
- The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
- The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
- With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.
In addition, instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, these rules of construction clarify that there will be some impairments that virtually always constitute a disability. The regulations also provide examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.
Again, each situation may have a different answer, but if there is any question about whether cancer, or any other impairment is a disability, the employer should err on the side of the most protection for the individual with the disability.
Remember to keep the information confidential. Even if an accommodation is provided that another co worker might question, the employer must keep the medical information private.