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Legal Words of Wisdom: Don’t Ask, Don’t Tell

Rodney Warner, Esq
Legal Clinic for the Disabled, Inc.

I’m often asked, “Do I need to tell my employer I have cancer?” Not to sound like a lawyer, but, the answer is yes and no.

Under the Americans with Disabilities Act, a job applicant’s health is not something that should be discussed. A prospective employer should not ask whether an applicant has a disability. A prospective employer can ask an applicant if he/she can perform the essential functions of the job with or without a reasonable accommodation.

If the applicant has a long gap in his/her employment history due to treatment and is asked about it, I would suggest an answer along the lines of…I had personal issues that needed to be resolved and that forced me to leave my job. Those issues have been addressed and I am ready to come back to work…It is an answer that is honest and leaves out details.

As long as it is a general policy, and not used just for a particular job candidate, an employer can give a tentative job offer conditioned on passing a medical exam. Questions during that exam must be answered honestly. Any medical information should be kept separately from a personnel file.

Management can ask about an employee’s disability when:

  • Due to a disability, an employee asks management for a reasonable accommodation to do the job,
  • An employee asks for a medical leave, or
  • There’s a drastic decrease in productivity or serious personnel issues arise.

To learn more about the ADA and legal resources for people affected by cancer, visit the Legal Words of Wisdom section on OncoLink.