Here is some very important information you may need to know when returning to work after a leave . . . .
By Laura Riley, Esq.
RE-ENTERING THE WORKFORCE
If you are getting ready to get back to work after a short or long term period of leave, there are some legal protections and government programs that may help you transition back to work.
Continuing Disability Insurance Benefits
If you received benefits from one of the two federal disability benefits programs, Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI), you may be able to take advantage of a program that allows you to test your ability to return to work, while protecting your eligibility for cash benefits and health care coverage. While attempting to return to work, you may keep full cash benefits, keep Medicaid (for SSI) or Medicare (for SSDI), and receive help with education, training, and rehabilitation. The trial work period lasts up to a total of 9 months, within a 60-month period. Then, you have 36 months to work and receive benefits for any month that your earnings are not “substantial.” In 2011, earnings of $1,000 or more, per month, are considered “substantial.” If you are unable to continue working after this period, your benefits will resume. The Social Security Administration’s “Ticket to Work Program” supports this trial period by, in addition to allowing continued benefits during this period, also helps you obtain vocational rehabilitation, training, job referrals, and other employment support services free of charge.
For more information about the “Ticket to Work Program,” please visit: http://ssa.gov/work/aboutticket.html
The Americans with Disabilities Act (ADA) prohibits discrimination in all employment practices against qualified employees with disabilities, who can perform the essential functions of their job, with or without reasonable accommodations. A reasonable accommodation is any change or adjustment in the work environment, or to the way things are customarily done, that enables an individual with a disability to enjoy equal benefit and employment opportunities.
Since ADA protections cover all phases of the employment process, this includes job applicants as well as employees. When starting to interview again after treatment or returning to their workplace after a leave of absence, many people are understandably worried about whether they have to disclose their cancer diagnosis and treatment. The answer to that concern is generally no.
A potential employee does not have to disclose a medical condition or a need for reasonable accommodations on an application form or in an interview, unless the accommodation is required for the application or interviewing process. Additionally, the employer may not ask whether you have a disability or about the nature or the severity of a disability (even if the disability is visible).
Employers may, however, ask about your ability to perform job-related functions as long as the questions they ask are not designed to elicit disability-related information. For example, a potential employer may not ask you if you took medical leave or sick time at a previous job, or how much time you took off.
Determining the best moment to tell a potential employer about the need for reasonable accommodations is a personal decision. Often you cannot accurately judge whether you need accommodations until you know more about the job and the work environment, which may only arise after working there for some period of time. Some people choose to inform the employer during the application process, after they understand the job requirements. If you choose to reveal your cancer diagnosis or other disability, then the employer may ask if you will need an accommodation—but that’s it.
It’s important to know, however, that an employer is required to take reasonable steps to accommodate a person with a disability, unless it would cause the employer an undue hardship.
Another instance where you may have to disclose information about having a serious medical condition, is when requesting leave under the Family Medical Leave Act or another type of leave policy. In those instances, you may have to provide documentation that you have a serious medical condition, but generally should not have to disclose your specific diagnosis or treatment.
It is important to note that each law that provides protections may cover employers of different sizes. For example, the ADA only covers private employers with 15 or more employees. However, many states have their own fair employment laws that provide employees with protections similar to the ADA that cover smaller employers and some even specifically list cancer as a disability.
For more information, contact the Cancer Legal Resource Center (CLRC) at 866-THE-CLRC (866-843-2572) or CLRC@LLS.edu, the Job Accommodation Network (JAN) at 800-526-7234 or www.askjan.org, or your state’s fair employment agency.