Cancer in the Workplace 2017-11-20T16:44:43+02:00

Be Legal

When you change your thoughts, your change your world. – Norman Vincent Peale

CANCER IN THE WORKPLACE

You have been diagnosed with cancer and presented with a treatment plan, your calendar is filling up quickly, and you feel like you’ve taken on a second job! Perhaps you’re wondering if you can keep working while you’re in treatment for cancer. Consider your health, your treatment plan, and your financial situation – then decide on whether or not continuing to work will work for you. Here are some important legal aspects to consider when being diagnosed with cancer. Kindly prepared by Martin Hennig Attorney

GENERAL INFORMATION

Disability is dealt with in Section 9 of the Constitution as one of the grounds on which a person must not be discriminated against.

According to the Employment Equity Act, People in South Africa with disabilities are people who have a long-term or recurring physical, including sensory or mental impairment which substantially limits their prospect of entry into or advancement in employment.

Illness, including cancer like HIV affects all corners of life. But even if it is a life threatening disease, it is not necessary labelled as a disability in most instances.

In the matter of Hoffman v SAA, it was held that the employer had violated Mr Hoffman’s rights when he was dismissed for having HIV. The court held that HIV did not prevent Mr Hoffman from performing his duties. The court also held that people living with disability have the right not to be discriminated against in any manner by the employer or other employees, even if the disability limits the person’s abilities to do certain things, but that does not perse mean employers should discriminate against them on the basis of their disability or their HIV status. As long as people with disability can still perform their functions for which they are employed, they are entitled to continue performing those duties and functions for which they were employed. That only to the extent of the employer becoming medically incapacitated to perform his/her duties and functions, may the employer then act accordingly either for incapacity to the extent of the incapacitation or operationally as far as the incapacity affects the operations of the employer.

Here are some good reasons to tell your boss about your diagnosis of cancer:

  • You will be protected from job discrimination by the discrimination laws if your boss is informed about your diagnosis.
  • You may need extra sick leave for cancer treatments and recovery. Your boss can connect you with your Human Resources office so you can receive additional sick leave hours and possible other benefits allowed by your employer.
  • Your treatment side effects may temporarily affect your job performance, so ask your boss for help or reasonable accommodations/assistance.

Prepare yourself before talking to your boss.

Before sharing the news with your employer, consider what facts they will need to know and how much detail you are willing to share.

You may know your general diagnosis, have a treatment schedule planned, and know how side effects may affect your time at work.

Write those down and if you may need to ask for reasonable accommodations/assistance, note those as well.

If you don’t have many details yet, just gather up what you do know and prepare to be honest about your lack of knowledge.

Set a positive tone for the conversation and your boss will take their cues from your behaviour.

  • If you are nervous, read from your prepared notes as you tell your boss about your diagnosis.
  • Remember, if your boss asks a question about your diagnosis or treatment and you have no ready answer, it is okay to say, “I don’t know yet, but I will find out and let you know.”
  • Ask that your private conversations with your boss be kept confidential.
  • Be honest about your emotions. You don’t have to hide your feelings, but try to keep your tears from taking over the conversation.
  • Do keep notes about what you talked about, with whom, and when. File these under “Work Issues” in your health notebook.

Get the correct Story on your Sick Leave, i.e.: your precise leave entitlement for annual leave, sick leave, family responsibility leave, etc.

Once you have told your boss that you have cancer, it is time to ask some questions and take notes.

  • Your boss should know who the best person to contact in the Human Resources office is.
  • You can ask for a copy of the Sick Leave Policy and instructions on how to use the Sick Leave
  • Be sure to ask how to apply for sick leave in case you need them.
  • Your employer may require some certificationabout your medical condition – ask what forms of certification will be needed.
  • If finances might become a problem, ask if there are any Employee Assistance Programs available to you.
  • Find out if there is a cancer support group in your company and how you can get connected with it/them.
  • If you’ve decided not to work through cancer treatment, ask if you can keep your employer’s insurance benefits if and where applicable.

Key Points about Telling Your Employer That You Have Cancer

Although it may be difficult, it is in your best interest to tell your boss about your cancer diagnosis. You will get job protection, extra sick leave, and reasonable accommodations/assistance to help you work during treatment.

  • Prepare yourself, stay calm, and have the conversation in confidence.
  • Keep a paper trailof all documents relating to your sick leave, medical certification, company policies, and be sure to save copies of any emails or notes that you took along the way.
  • If you are uncertain and want professional advice about how to talk to your boss, speak with an oncology social worker, counsellor, or patient advocate about work issues (Patient advocacy is an area of specialization in health care concerned with advocacy for patients, survivors, and carers. The patient advocate may be an individual or an organization, often, though not always, concerned with one specific group of disorders).
  • Always keep the lines of communication open between you and your employer. They may become one of your great supporters.

Can/Should I Work During Treatment for Cancer?

You have been diagnosed with cancer and presented with a treatment plan, your calendar is filling up quickly, and you feel like you’ve taken on a second job!  Perhaps you’re wondering if you can keep working while you’re in treatment for cancer. Consider your health, your treatment plan, and your financial situation – then decide on whether or not continuing to work will work for you.

How to Consider Balancing Work and Treatment

Before you start treatment, talk to your doctor about the kind of work you do. Describe your tasks and responsibilities as well as how much time you are normally at work. Ask your doctor or nurse practitioner about possible side effects you should expect with treatment, and how these can be managed. Be realistic about your present health, the stage of your cancer, and other commitments you may have away from the job. Remember that effects of treatment are cumulative, and that as you near the end of treatment, you may need a block of unbroken time in which to recover. With these factors in mind, consider your ability to keep working while in treatment.

Give A Little, Take A Little

Be sure you know your employer’s sick leave policy and your employment rights before you inform your boss about your diagnosis. Prepare a list of ways that you might compromise and still fulfil your obligations.

Be clear that you want to keep working, but may need reasonable accommodation/assistance in order to work. Ask about:

  • Telecommuting or working from your home
  • Cross training and sharing your work duties with other employees
  • Flexitime meaning changing your work hours or cutting back on hours

Taking a Break from Work/leave

Sometimes the side effects of treatment or the cancer itself will get the best of your energy and health.

If that happens, you may decide not to work through treatment. Talk with your supervisor and the human resources department about taking a leave, or claiming short-term disability insurance to tide you over for a while (for those who are fortunate enough to have taken such cover). If you do have disability cover, speak with your doctor about how you’re feeling and ask if you would qualify for disability. If you settle on quitting work for now, look into your work disability insurance as well as early retirement. Make sure that you will still be covered by medical aid should you claim disability and/or early retirement. It may pay you to remain employed in order to ensure that you are covered for medical expenses.

Consider and reconsider Your Decision over Time before you make a final and binding decision. With other words, know the financial consequences of your decision.

None of us can predict exactly how we will feel during cancer treatment, so take some time at intervals during your treatment to rethink your decision. You may decide that you were overzealous and that working won’t work for you.  In contrast, you may have taken off time, but feel bored and anxious to return to your job.  Many of us find social support among those we work with, and what appeared to be a time of peace away from the grind may instead feel lonely. Be flexible, and give yourself the benefit of being able to change your mind. Seek this flexibility in approach from your employer rather than firm fixed stances which cannot accommodate change.

Working Through Cancer Treatment

Many patients do work through cancer treatment. If you’ve confided in your co-workers, they may be able to support you on the job. On days that you need extra help, they might give you a ride or help with demanding tasks, while on other days when you’re at home; they may be willing to bring work to you.

If some of your co-workers are uncomfortable around you, just try to let it go. Pick your battles carefully and hoard your energy for important things.

Join care groups that can be immensely helpful with resources, individuals that are going through the same experience who may help you find solutions to common experienced problems.

Cancer patients and their employers need to understand their rights and obligations and also what can be expected on this “the cancer journey”.

Supervisors and managers are expected to proactively manage the challenges faced in the workplace when dealing with a cancer diagnosis, however, in SA there is a long road still needed to be travelled.

Campaigning for Cancer has collaborated with key stakeholders to develop a written Cancer@Work Programme, the first of its kind in South Africa, which offers employer and employee workshops, step-by-step guides on handling cancer in the workplace and access to resources with information about legal rights relating to employment, step-by-step guides explaining the journey of a cancer patient for employees, co-workers and the employers that will encourage open dialogue.

“As part of Campaigning for Cancer’s aim to lobby for the promotion and protection of the rights of patients and those affected by cancer, the larger Cancer@Work Programme will guide a company in establishing and implementing a cancer policy in the work place and help to gather important data regarding how cancer is viewed in South African workplaces,” said Campaigning for Cancer CEO, Lauren Pretorius.

The first step in helping South African employers and employees exercise their rights afforded to them by our country’s laws and constitution, is by providing them with access to information that is reliable and easy to understand,” commented Bradley Workman-Davies, Director in the Employment Practice Area at Werksmans Attorneys and co-author of the Cancer@Work Programme.

Campaigning for Cancer strives for a South Africa where people affected by cancer receive fair, appropriate, timeous and respectful treatment and care by lobbying for the promotion and protection of the rights of patients and those affected by cancer with regard to policy, healthcare costs and healthcare delivery.

This is done on an individual level – changing one life at a time – by providing people with the knowledge and tools to see their treatment process through; as well as on a larger scale – by noting issues highlighted by these individual cases and lobbying for policy change that will affect all of society. For more information, please visit www.campaign4cancer.co.za

Campaigning for Cancer collaborates with corporate law firm, Werksmans Attorneys, in a “walk together” approach of active engagement around cancer patients’ healthcare rights and healthcare law in general.  For more information, please visit www.werksmans.com

Denied cancer treatment? Phone the Ask Now Call Centre on 0861 275 669 (0861 ASK NOW) for help.

Advocacy is the process of trying to change policies to reflect the needs of individuals and communities. Patient advocacy provides opportunities for NGOs, cancer patients, their families and supporters to become involved in the decision-making processes that affect their lives as well as become empowered to speak up about their needs and take an active role in ensuring that they receive appropriate cancer treatment and care.

In general, advocacy is defined as the active support of an idea or cause.  It means that people raise their voices to push for or argue for something that is important to them.

Advocacy work includes many different activities such as lobbying, mobilisation, education, research, prayer and networking. It can be undertaken alone, with a group of people or as part of a network. It can be spontaneous or carefully planned a one-off intervention or an on-going process. We can undertake advocacy through speaking out against injustice, defending the cause of the poor, holding those in power to account, and empowering people to speak out for themselves.

Anyone can undertake advocacy work – it does not need to be left to professionals or experts. It means doing something even if it is as simple as talking to your neighbour about the issue that is important to you

The types of advocacy

Advocacy is about working on individual cases, such as one patient getting access to a treatment they may have been denied, and about campaigning on issues, such as ensuring that there is an up to date cancer registry that can tell us the types of cancers that are common in South Africa or who they are affecting.

Self-advocacy begins with individual patients speaking up to ensure their own quality of care. Family and friends can also become advocates to help individual patients secure services. The role of the cancer NGO is to provide the education and information regarding these rights, process and tools on how to speak up.

Systems-level change advocacy is working towards making changes in service systems, use of funds, public policies, laws, regulations to impact many people. The role of the cancer NGO is to lobby, at relevant levels, with stakeholders and decision makes to drive this process.

The benefits of advocacy

Advocacy leads to change.  If no one raises their voice about an issue that is not receiving the attention it deserves, then nothing changes.  Advocacy is important because it brings something that may seem unimportant to the attention of those who have the power to carry out change.

  • Advocacy makes people aware of their own power.
  • Advocacy can tackle root causes of injustice and brings long-term change.
  • Advocacy uses people as agents of change in their own communities so the change happens from the ground up.
  • Advocacy can help to generate more resources for cancer patients.

Ultimately, advocacy seeks to improve the lives of cancer patients and those affected by the disease.

Why is cancer advocacy important to South Africans?

Cancer in South Africa does not get the attention it needs, both from the everyday man and from our government.  Dr Barry Kistnasamy from the National Cancer Registry was recently quoted for stating that cancer is the fourth biggest killer of South Africans, in spite of the fact that the most common cancers (in South Africa) are treatable if detected early enough.  This means that we as South Africans are not educated about these treatable cancers – because if we knew, surely we would be doing something to make sure that we do not die from an illness we can do something about.  It also means that our government may not be providing the services that we need to treat these treatable cancers.  Advocacy ensures that the public is educated and aware and it means ensuring that services such as treatment are available and accessible.

FAQ

Many people affected by cancer have questions about work. You may wonder if you have to tell your employer, or whether you will be able to have time off for treatment.

People returning to work after treatment wonder how they’ll cope, or if they have to disclose they’ve had cancer when applying for a new job. Carers often have questions about their rights at work too.

This fact sheet answers some common questions people have about their rights at work. It explains the law that applies to most people in South Africa, other than state and local government employees, employees of partnerships, and sole traders.

The law that applies to you depends on what organisation you work for. You should get specific advice on the law that applies to you.

You’re not legally required to tell your employer about your diagnosis, but it can help. If your employer is reasonable, providing them early and straightforward information about your condition may assist them in forward planning and enable them to support you better. If you think your employer is unlikely to be supportive, a more careful approach may be better.

If your employer knows, they may be more understanding if you need time off for treatment, tests or follow-up care. The law says they have to do what is reasonable to help you. They can make changes to your workload and environment so you can continue to work productively. This may include making minor changes to your work duties, modifying your workstation or other things.

If you do disclose your diagnosis, your employer must keep the information confidential. They can’t tell your co-workers about your diagnosis unless you agree.

If you decide not to tell your employer, it can be difficult if the cancer and treatment affects your work or you miss a lot of time at work because of medical appointments.

Some people with cancer may feel isolated at work. They may think people are talking about them behind their back, saying that they are not pulling their weight or taking too much time off. It can be hard to go to work when you feel like you are being bullied or harassed by workmates.

The first step to deal with these issues is to talk to your manager, or to the human resources department. If your manager is the person who is bullying you, then you can go to someone higher up.

You should keep detailed notes of all the incidents of bullying, including dates. This will help you remember everything that has happened so you can explain it later.

If the bullying means you have to take time off work due to stress, you may be entitled to workers’ compensation. You will need a medical certificate confirming that your stress is due to bullying or harassment. Your first port of call is to lodge a grievance against the individual or group of individuals against who are harassing you. The employer is given an opportunity to resolve your complaint. If the employer is unable to resolve your complaint within a reasonable time or within the time-frame provided in terms of its grievance procedure, then and in that event you may refer the dispute which then exists to the CCMA under the banner of residual unfair labour practice.

Most employers are supportive when an employee is diagnosed with cancer. However, misconceptions about cancer may mean some people are treated unfairly. Sometimes, this may amount to discrimination. Discrimination in the workplace on the basis of cancer is unlawful.

Examples of discrimination may include an employer:

  • stopping you taking personal leave, if you have entitlements
  • telling you to quit
  • demoting you to a lower-paid or less demanding job after a temporary absence
  • dismissing you for a reason relating to your cancer
  • Promoting another employee with less experience or ability to do a job.

If you are dismissed because of your cancer diagnosis, this may be adverse action or unfair dismissal. You can apply to the CCMA for help. You only have 30 days after being dismissed to lodge an unfair dismissal claim and 90 days for an adverse action claim associated with discrimination.

Australian law requires an employer to make reasonable changes to help you perform the core or essential elements of your job if you are unable perform those elements because of an illness or disability. These elements (known as the inherent requirements of the job) include being able to work safely, productively and as part of a team.

This may mean, for example, if you work in a call centre, and you’re not able to hold the phone in your hand, your employer may need to purchase a hands-free headset for you to use. The inherent requirements of the job are that you can speak and hear on the phone – not that you can hold a phone.

You can only be dismissed if you cannot perform the inherent requirements of your job even after reasonable changes. Being dismissed because you can’t do things that are not inherent requirements of the job may be unfair dismissal or unlawful discrimination. You have 30 days to lodge an unfair dismissal dispute with the CCMA and 90 days if your complaint relates to unlawful discrimination.

In general, it is against the law to dismiss someone who is on sick-leave due to illness. This includes casual employees.

If you think your employment has been terminated unfairly, this may be unfair dismissal. It will not be a ‘fair’ dismissal if you are dismissed for being diagnosed with cancer or because you have used up your leave entitlement (sick leave or annual leave). The employer is required to follow a fair process and have a fair reason to terminate your employment. Remember that if you are dismissed without the employer following a fair process or for having a reason to do so (fair reason), you may approach the CCMA within 30 days from date of being notified of your dismissal or your last working day, whichever is the earliest.

If you fail to provide notice to your employer or evidence if they ask for it, you may not be entitled to be paid for the sick-leave and may be exposed to disciplinary action, potentially including termination.

Usually, you need to take your sick-leave, then your annual leave, then any other time which is owing to you by the employer (overtime worked not paid out if agreed to), and finally unpaid leave. Your employer may allow you to take unpaid leave before using up your paid leave, but this is not required by law.

All employees are entitled to receive family responsibility leave on full pay each year, which you can use to care for your close family member. You cannot be dismissed for using these entitlements.

Discrimination against you at work because of your caring responsibilities is against the law. If this happens, you can lodge a dispute with the CCMA for either residual unfair labour practice or discrimination, depending on the nature of your complaint and underlying reasons given therefore by the employer.

If you attend work and your employer reasonably believes that you are not fit for work, or if your colleagues may be exposed to infection or contaminants (e.g. if you are vomiting), your employer has the right to ask you to undergo a medical examination at a medical practitioner of their choice and at their costs and expense.

Your employer must let you come back to work if you:

  • have a certificate from your doctor saying you are fit to return to work
  • You can perform the inherent requirements of your job after the provision of reasonable/minimal costs changes.

In general, there exists a moral/social obligation on your employer to help you by making minor changes to your role to take account of what you can and can’t do during and after treatment. Making flexible working arrangements, including allowing part-time work, may be one of these changes. If your employer generally permits people to work part-time, but refuses to permit you to do so, this may be discrimination.  Dismissing you because you can’t work full-time may be unfair dismissal.

Imposing a requirement that everyone works full- time – where this is not an inherent requirement of the job – may also be indirect discrimination. Indirect discrimination is where a policy or rule applies to everyone equally, but it is harder for a person with an illness or disability to comply.

If your employer refuses to allow you to work part- time, or acts in a manner which you feel as being unfair, you should not resign. Resignation should always be the last resort after you have taken all reasonable steps to try and remedy the complaint within your place of work – follow the grievance procedure.

Being offered a more junior role or less pay may be adverse action or constructive dismissal if unilaterally imposed by the employer.  Constructive dismissal means that you were force to resign due to intolerable working conditions which tested objectively, no reasonable employee can be expected to endure.  If however, you accept the “offer”, then and in that event a new working relationship has been established, particularly so if you accept that you can no longer perform the inherent requirements of your old job.

If it has become operationally expedient to retrench you due to you no longer being able to perform your duties/functions, instead of terminating your employment due to

incapacity, the employer may offer you the more junior position with lower salary as an alternative to dismissal. Dismissal may be found fair if you then unreasonably (without reason) reject such offer.

Obtain legal advice before accepting the offer of a new role or less pay.

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