How to help your working patients understand their legal rights

As an oncology nurse, social worker or patient navigator, you’re no doubt up-to-date on the most promising cancer treatments. You’re also probably well equipped to advise your patients about getting appointments and watching for treatment side effects and are trained to give emotional support.

When it comes to providing legal information about their job rights, however, you may feel less prepared. Below, two attorneys well-versed in the area provide you with usable talking points when you need to discuss work-related questions with your patients.

• Debra J. Wolf is a senior attorney with LegalHealth (one word), part of the New York Legal Assistance Group (www.nylag.org) Her organization trains doctors to talk to patients about non-medical issues that could affect health.
• Paul Risner is general counsel for U.S. Preventive Medicine (www.uspreventivemedicine.com), a company offering preventive health benefits services.

Their suggestions include:

Know the basics of the major federal and local state laws affecting your working patients with cancer so you can initiate a productive discussion.

These include the Family Medical Leave Act (FMLA), which mandates that employers who are covered (typically those who employ 50 or more) must grant an employee who is eligible up to 12 work weeks of unpaid leave during any 12-month period for medical reasons (as well as child care and other issues). Up-to-date information is found on the U.S. Department of Labor website, https://www.dol.gov/agencies/whd/fmla.

Not so well known: A worker can apply for intermittent leave. So a patient who has cancer treatments, for instance, every other week, can simply apply for work leave every other week, until the maximum is exhausted.

The Americans with Disabilities Act may also provide protection. This federal law, which prohibits discrimination against people with disabilities, applies to those who have 15 or more workers as well as state and local government employers. Cancer is considered a disability under this law.

The Act was last amended in 2008. For the best updates, check out the U.S. Equal Employment Opportunity Commission web page on the topic, www.eeoc.gov/laws/types/cancer.cfm

Suggest that your patient explore all options.

State laws may also come into play, as many states have their own laws that may provide even more protection than federal laws. For a list of legal resources for each state, visit Triage Cancer’s State Resource page, at www.triagecancer.org/resources/stateresources. 

Alert your patients that additional protection may be available, beyond federal and state laws. Employers may offer their own unique programs, such as disability programs.

Short-term disability may be available, depending on state laws and company policy. Some states require many employers to carry it.

Long-term disability may be an option, under Social Security or private plans sponsored by the employers.

The best place to find this out: encourage your patients to check their company policy manual or check in with the human resources department.

You don’t have to know all the answers; knowing where to refer patient for information can be just as or even more helpful.

Legal issues can get complicated and you don't want to give outdated advice. Sometimes it is best to refer patients for more specialized information.

Among the options: Suggest that your patient contact a legal service organization in the community with a good reputation. Ask the hospital administration for a referral to a good employment rights attorney in the community.

Legal resources:

• Workplacefairness.org, at www.workplacefairness.org, is a nonprofit organization dedicated to preserving and promoting employee rights. Information on workplace rights, including protection against discrimination can be found here.
• LawHelp.org, www.lawhelp.org, provides basic legal information to people on low incomes. The website has been built by Pro Bono Net, a New York–based nonprofit organization, and a host of other legal aid associations. Links to resources in every state, on a state-by-state basis are included.
• Basic information about how the Americans with Disabilities Act protects against discrimination is found on the U.S. Equal Employment Opportunity Commission site, www.eeoc.gov/laws/types/cancer.cfm
• Think local, not national, experts advise. Bar associations, especially in larger cities, typically coordinate pro bono work. Calling your local bar association, getting the contact information for your region online or through the telephone directory, is an excellent starting point. Tell them exactly what your issue is and ask for a referral. Some even have special projects or sections that can help you. For instance, the New York City Bar Association has a cancer advocacy project, in which volunteer attorneys provide 30-minute consults for cancer patients with work discrimination issues. For more information: www.abcny.org/CityBarFund/CommunityOutreachLawProgram.htm#caring

Encourage your patients to talk to the most appropriate people at work.

While some patients may think it’s best to talk directly to their supervisor or immediate boss first, human resources department can be a great support and resource as well. HR’s job is to be up to date on a worker’s rights. Their focus is on keeping the company out of trouble by following requirements and protecting a worker’s rights. Suggest that your patient make HR their advocate. They are people who can help when difficulties arise on the job or with unexpected need for time off due to relapse or other setbacks. However, encourage discretion in the early conversations, as patients need to figure out their comfort levels with and decisions surrounding disclosure are.

Teach your patient to take control during talks with their employer.

Once they've made their disclosure decisions, suggest that patients take their calendars into such meetings, with treatment appointments noted, so they can have a more structured and organized approach when they talk to the HR staff. Encourage them to practice the script, something like: “I am out for one week for treatment next month. I must stop work on the 10th, but can be back on the 17th. I can work my regular hours.”

The focus, for the cancer patient, is to protect their job, their reputation as a good worker and their benefits. Suggest that patients remind their employers that the absence is temporary and that they look forward to returning full time as soon as possible.

The take-control and more prepared approach shows the employer that a valuable worker isn’t being lost and gives the patient a sense of control when the rest of her life may seem not at all in control.

Know the value of your compassion. You may feel ill equipped to provide anything but the basic legal information, but your medical background can help your patients get through the legal steps to get time off, leave or accommodations.

One way: Be sure the medical record is complete. That way, when a patient needs to request medical leave, or disability, the information is there and ready to be considered. You can be “proactive” and ask the doctor to write a special memo when necessary. For instance, when a patient who is suffering fatigue from chemo treatments requests a cot in the women’s lounge so she can take brief naps, ask the doctor to spell out that the fatigue is common and that the patient has learned to spring back by taking 20-minute naps.

Encourage patients to keep written records of their interactions with their company’s HR staff.

The moral support — and the gentle nudging — given to patients when they are working through their decisions about which legal protections to ask for is valuable. Many patients will also need prompting to tend to deadlines in applying for legal protection. By pointing them to accurate sources of help for legal issues, and keeping patients on track with paperwork deadlines, you also help them focus on the main issue: their recovery.

Updated 2023.