September 28, 2017
Cancer and Reasonable Accommodations
Disability discrimination remains one of the most filed forms of discrimination with the EEOC. In 2016, nearly one-third of charges filed with the agency involved claims of disability discrimination. Reasonable accommodations remain a focus for enforcement by the EEOC in 2017. In recent weeks, the agency filed two separate lawsuits against employers who failed to provide a limited medical leave as a reasonable accommodation to employees undergoing cancer treatment.
Disability discrimination remains one of the most filed forms of discrimination with the Equal Employment Opportunity Commission (EEOC). In 2016, nearly one-third of charges filed with the agency involved claims of disability discrimination. In Minnesota, the percentage is even higher. Both the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) protect employees from discrimination because of disability, prohibit retaliation and require employers to provide reasonable accommodations for a disability.
The EEOC, which enforces the ADA, has identified reasonable accommodations as an emerging and developing issue in its 2017-2021 Strategic Enforcement Plan. Specifically, it has made inflexible leave policies that discriminate against individuals with disabilities a national priority for the agency.
Two Reasonable Accommodation Cases Recently Filed
In recent weeks, the EEOC filed two separate lawsuits against employers who failed to provide time off to employees who sought a leave of absence for cancer treatment. In EEOC v. Midwest Gaming LLC, which was filed in the U.S. Northern District of Illinois, the EEOC sued on behalf of Donnan Lake after he was denied a few weeks of additional leave for surgery and treatment relating to sarcoma.
Similarly, in EEOC v. Wynn Las Vegas, the agency sued the luxury resort after it terminated an employee who had requested leave to undergo surgery for ovarian cancer and recover from the procedure. The EEOC asserted that Wynn Las Vegas failed to provide the requested leave for her medical treatment and then fired her for her disability. In both cases, the EEOC stressed that a limited request for a medical leave can be a reasonable accommodation and that summarily denying the request without engaging in an interactive process violates the ADA.
What are reasonable accommodations?
The ADA and MHRA require an employer to provide reasonable accommodations to a job applicant or employee, unless the accommodations would be an undue burden to the employer. An undue burden means the request would cause significant difficulty or expense to the employer. The purpose of a reasonable accommodation is to allow an individual with a disability to enjoy the same privileges of employment as those without a disability.
Examples of a reasonable accommodation include:
- Job restructuring;
- Part-time or modified work schedule;
- Acquisition or modification of equipment or devices;
- Reassignment to a vacant position;
- Time away from work to obtain treatment, recuperate, etc.
Once the request for an accommodation is made, the employer must engage in an interactive process with the employee to assess the individual’s needs and determine the appropriate reasonable accommodation. The employer must review each request to determine: whether the reasonable accommodation is needed; whether the accommodation would be effective; and whether the accommodation would pose an undue hardship. The employer’s duty to provide reasonable accommodations is ongoing. If an accommodation turns out to be ineffective, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship.
Additional information about requesting reasonable accommodations may be found on the EEOC’s website by clicking here.
The Family and Medical Leave Act (FMLA) provides additional requirements for covered employers and protections to qualified employees seeking a medical leave of absence. Click here for more information about the FMLA.
Who is protected by the ADA and MHRA?
Under the ADA, employers with 15 employees or more are required to provide a reasonable accommodation to employees and job applicants with disabilities who are qualified for the employment position. The MHRA provides the same disability, retaliation and reasonable accommodation protections as the ADA but applies to all employers, no matter their size.
Click here for more information about disability discrimination.
Contact Our Minnesota Employment Lawyers to Discuss Your Disability Rights
Wanta Thome PLC is committed to protecting the rights of Minnesota employees who have suffered disability discrimination, harassment and retaliation. If you believe you have suffered discrimination relating to your disability, our employment attorneys want to hear from you. Contact us at 612-252-3570 or click here for a free initial consultation.