Legal and Employment Issues
Without leaps of imagination,
or dreaming, we lose the excitement of possibilities.
Dreaming, after all, is a form of planning.
— Gloria Steinem
a number of legal issues that breast cancer
patients may want to know about. These
legal issues generally concern health insurance,
rights, treatment rights, life planning and
Legal Issues and Health Insurance
A health insurance company’s decision
about insurance coverage for breast cancer
treatment and services is often based on
the cost of the service, rather than on what
the patient’s doctor prescribes as
medically appropriate and necessary. Most
health insurance companies are businesses
committed to their own interests. You must
be equally prepared to represent and protect
you have been denied coverage by your
health insurance provider for breast
cancer treatment or services prescribed
by your doctor, you can appeal the
Breast cancer patients are
sometimes unaware that they can appeal
an insurance company’s
decision to deny coverage. Also, women
in this situation may seek expert advice
too late—after they have exhausted
the appeals that a knowledgeable advocate
or lawyer may have been able to pursue
successfully. If the appeal was related
to treatment, and a woman is not able to
pay out-of-pocket, this situation could
affect her survival.
If you have been denied
coverage and your life or health is in
jeopardy, you should consider consulting
a lawyer who is knowledgeable about health
insurance law. A letter from a lawyer
or consumer advocate is often taken more
seriously by health insurance companies than
a letter from a patient. These letters
can sometimes speed up reversing a
denial of coverage.
If you cannot afford
a lawyer, look for a pro bono attorney
(attorneys who provide their service at no
cost or at reduced cost) or contact a consumer
advocacy group. See Resources at end
of this section.
more tips about how to appeal a denial
of coverage with a health insurance company.
Patient’s Bill of Rights.
Bill of Rights was adopted by the American
Hospital Association in 1973 and revised
in 1992. This document describes the rights
of patients and the responsibilities that
hospitals and healthcare providers have to
support these rights and deliver effective
health care. Most hospitals should have a
copy of the Patient’s Bill of Rights
or contact the American Cancer Society at
800.ACS.2345 or www.cancer.org.
Prior to performing most procedures, your
physician will ask you to sign an Informed
Consent form. (Your doctor will explain
what the procedures are and the risks and
benefits.) By signing the form, you agree
to the procedures, and that you understand
the risks and benefits. You should have an
opportunity to ask all of your questions.
Your doctor will also explain what choices
you have regarding available treatments.
Make sure you read the consent form very
carefully before you sign it. If you do not
agree with any part of it, cross out that
part and initial it. When you sign the form,
you are giving permission for your doctor
to treat you. You are not absolving your
doctor of negligence.
Access to your medical
record. You have a right to obtain an updated
copy of your medical record. You will have
to sign a release form to get that copy.
The person who works in your doctor’s
office can help you fill out the papers.
You might have to pay a small fee to obtain
your records. It is a good idea for you to
keep current copies of all your medical records.
BREAST CANCER TREATMENT RIGHTS
Health and Cancer Rights Act of 1998 (WHCRA)
This federal law requires health
insurance plans to cover reconstructive
surgery after mastectomy, as well as implants
and other work needed to make the other
breast symmetrical. The law applies both
to persons covered under group health plans
and to persons with individual health insurance
WHCRA does not require health
plans or issuers to pay for mastectomies.
If a health plan or health insurance
company chooses to cover mastectomies, then
the plan is generally subject to WHCRA requirements.
If WHCRA applies to you, and if you are
receiving insurance benefits for a mastectomy
and plan to have breast reconstruction,
coverage must be provided for:
of the breast on which the mastectomy
has been performed;
- Surgery and reconstruction
of the other breast to produce a symmetrical
- Prostheses (e.g., breast
- Treatment for physical
complications of the mastectomy, including
and Cervical Cancer Treatment Act (2000)
This law guarantees medical treatment
to low-income, uninsured women screened
for and subsequently diagnosed with
breast or cervical cancer through the North
Carolina Breast and Cervical Cancer
Control Plan (BCCCP) program. BCCCP is a program
providing free mammograms, clinical
breast exams and other tests to income-eligible
women through local health departments.
It is also available in other states.
For more information about NC BCCCP,
and Other Assistance.
laws passed in North Carolina
insurance companies must pay for
mammograms and Pap tests. This does not
cover all health insurance providers. Check
with your insurance company or employer.
and your doctor, rather than your health
insurance company, can decide how long
you will stay in the hospital after a
- Health insurance companies
or employers are not allowed to deny you
coverage or employment based on genetic
All adults should designate
the person(s) who will make decisions for
them if they become unable to act on their
own behalf. This is called an advance directive,
which is a legal document that allows people
to convey their decisions about end-of-life
care ahead of time. The purpose of advance
directives is to let your loved ones and
your healthcare providers know what you want
while you are able to communicate your preferences
for care. See Hospice
Care & End of Life
Issues for more information. Below
are a few other legal documents that assist
in life planning.
Last Will and Testament
(Will). A Will is a personal plan instructing
your survivors or beneficiaries about your
wishes. Every adult should have a legal
Will. You can be as specific or as general
as you wish. Some terms to address in the
Will may include provisions for who will
take care of your children and who will receive
your assets after you die. This is a legal
document that should be written with the
aid of a lawyer. It can be changed at any
time. In North Carolina, Wills should be
witnessed by two individuals (unrelated to
the person making the Will) and must be notarized
in the presence of all parties.
Estate Planning. A trust is a legal arrangement
under which you, as the grantor, transfer
money or other property to a trustee. The
trustee will hold and eventually distribute
the property for the benefit of one or
more beneficiaries (people receiving the
benefits). The trustee manages the property
placed in the trust and follows your instructions
concerning the management and distribution
of the property.
Trusts can be broadly categorized
as either testamentary trusts or living
trusts. A testamentary trust is created
within a Will and takes effect only
at death. A living trust is a trust that
you put in place during your lifetime.
Many people are already in
the workforce when they are diagnosed with
cancer. For many, work is a source of fulfillment
and financial security. As long as you are
able to work, and you are not compromising
your health during treatment, there is no
reason for you to feel that you should stop.
for Working During Cancer Treatment
Telling co-workers. In some settings,
co-workers will react to your cancer diagnosis
and absences with understanding and helpfulness.
Other co-workers may feel uncomfortable
around you because of your cancer, or they
may resent taking on extra duties because
of your absence. How open you are with
your co-workers about your condition is
a personal decision. In some environments,
it won’t benefit
you to share details. However, many women
with breast cancer say they are glad they
shared information about their illness
with people at work.
Work schedule, calendar
and duties log. You may want to make
logs of your usual work schedule and duties,
and refer to it when organizing any flextime,
shifted duties or time off. You may also
want to make a detailed list of job duties
so that you are able to direct others
in handling situations and procedures while
you’re out of the
Worries about discrimination.
Even though the public’s understanding
of cancer is generally improving, some
prejudices and wariness remain in the
workplace. This may be in part due to
competitiveness and economic pressures
and fears. If this situation arises,
you may want to keep records of your
contacts with office personnel, including
the names of people with whom you have
spoken about your illness, the date and
place you spoke, and the information
you received. It’s
also a good idea to keep documentation
of your job performance evaluations.
accommodations. Employers are not required
to lower standards in order to accommodate
any one employee. However, an employer
is required to reasonably accommodate
a qualified applicant or employee with
a disability unless the employer can
show it would be an undue hardship to
do so. Examples of reasonable accommodations
- providing or modifying
equipment or devices
- offering part-time or modified
- reassigning an employee
to a vacant position
- adjusting or modifying
examinations, training materials or policies
readers and/or interpreters
- making the
workplace readily accessible to and usable
by people with disabilities.
Tips on Returning to Work After
If you are able to return to work
shortly after your treatment, you may find
that it helps you maintain your identity
and even boost your self-esteem. Cancer
can be isolating, and it can be a comfort
to be around other people. Check with your
employer about options such as flextime,
job-sharing or telecommuting if it will
help you perform your duties. Some people
with cancer who are re-entering the workforce
may want to seek counseling to help readjust.
writing a resume, focus on skills and
experiences rather than chronology if there
was a long period of time when you were out
of work due to your illness. Rather than
organizing your resume by dates of employment,
focus on areas of expertise and experience.
going for an interview, there is no need
to volunteer your history of cancer. It
is not legal for an employer to ask you questions
about your health that do not directly
relate to job functions. Consider your cancer
history as any other piece of personal information,
which is generally not appropriate
to share during a job interview. However,
if the question arises, be truthful
about your medical history, especially
on insurance forms.
If you are seeking
employment, if may be helpful to try large
companies that are more likely to have
encountered employees with situations similar
to your own. In addition, it may be helpful
to ask your doctor for a letter that
supports your current situation and
ability to work. It may help employers
feel more secure about hiring you if
an issue relating to your health arises.
on your current health. If your current
employer or potential employer is aware of
your cancer history, emphasize your current
abilities and skills, rather than dwelling
on what you were or were not able to do in
You have the same rights as anyone
else in the workplace and should be
provided equal opportunities, regardless
of whether or not you talk about your
cancer with people at work. Hiring,
promotion and treatment in the workplace
should depend entirely on ability and
qualifications. As long as you are
able to fulfill your job duties, you
cannot be fired for being sick. Also,
you should not have to accept a position
you would not have considered before
Some common forms of discrimination
are refusing to hire, demoting or
denying promotions, not allowing time
off for medical appointments, or suggesting
that the person with cancer would
be “better off” not continuing
If you notice that your boss
or co-workers are treating you differently,
consider the questions below. Each
time something happens, write down
when it happened, why and who was involved.
If you ever need to consult a lawyer,
you will already have a record.
- Have your responsibilities
- Have you been transferred
without anyone telling you in advance?
- Have you had to
take a medical exam that is unrelated
to your job responsibilities?
- Have your insurance
benefits been cut, changed or discontinued?
If you suspect discrimination,
consider following these steps:
Work with your supervisor or human
resources department to resolve
the problem informally. Under the Americans
with Disabilities Act, employers
are required to make reasonable
accommodations. If you took this issue to court,
the judge would ask that you and
your employer try to work it out this way
first. Is flextime an option? Are
there accommodations you can suggest to your
employer that will make your work
life easier? Open communication between
you and your employer about your
needs and their needs may help to resolve
what might otherwise turn into
an unpleasant situation.
from others. Perhaps
a local cancer group or health professional
would be able to provide education
for your employer about cancer and
workplace issues. You may want to speak
to an attorney specializing in workplace
discrimination who can advise you on
how to proceed. If there are other
cancer survivors in the workplace,
see how they have dealt with the issue.
written records of actions. Write
down dates and times of discriminatory
actions and conversations that you have
with your employer. Be precise and detailed
in your notes.
are protected by the Americans with Disabilities
Act (if your company has more than 15 employees).
Contact the Equal Employment Opportunity
Commission (EEOC) if you wish to
file a complaint. Be aware of filing
deadlines. You have 180 days from
the date of discrimination to file
your complaint formally. That could
be the date you were fired, date
you were denied promotion, or the
date your job responsibilities changed.
After the 180-day deadline has passed,
it is difficult to file a complaint.
about your goals. If you do decide
to take legal action, consider the consequences
of such an action. Ask yourself whether
the sometimes long and drawn-out process
of a lawsuit is worth it, and how you
would feel if you lost the decision. It is
important to examine these issues for yourself
carefully and understand the drawbacks
of what you are getting into. It
may also be possible for you to let go
of the anger and move on.
in the employment section was adapted
in part from Tips on Returning to Work
After Cancer Treatment, American Cancer
Society (800.ACS.2345 or www.cancer.org)
and Ways to Advocate for Yourself or
Someone Else Who Has Cancer, CancerCare,
Inc. (800.813.HOPE or www.cancercare.org).
LAWS THAT CANCER PATIENTS MAY WANT TO
While treatment and recovery
concerns are likely to be at the top of
the priority list when you learn you have
breast cancer, you might want to be
familiar with other laws that protect
Health Insurance Portability
and Accountability Act (HIPAA)
The federal government passed this
Act in 1996 to help improve health
insurance coverage for people with
pre-existing conditions who change
jobs or lose health insurance coverage.
Before HIPAA was passed, many people
were excluded from health insurance
coverage because of previous health
problems, even if the problems occurred
many years earlier.
HIPAA ensures that people
seeking group health insurance will have
full coverage within a relatively short
period of time. If you have had breast
cancer or another serious medical condition,
it is important to avoid a break
in coverage of 63 days or more. You can
apply for COBRA continuation coverage
to bridge the gap between jobs.
If a break in coverage occurs, you might
have to wait six months or more
before your insurance will cover you. See
Insurance Issues on page 140 for
A second part of the
HIPAA bill deals with the protection of
privacy of medical information. Some of the
recent paperwork changes you may have noticed
in hospitals or doctor’s
forms to sign before receiving care) relate
to this part of HIPAA. The new laws guarantee
the right of patients to see and obtain
copies of their medical records and request
corrections if they see mistakes. They also
regulate and protect access to medical information
(particularly computer information) by
Americans with Disabilities
This federal law states that an
employer cannot refuse
to hire or refuse to continue to
employ a person with a disability
(including cancer), as long as that person
is able and qualified
to do the job. The law applies to any private
employer, including state
and local governments, with 15 or more employees.
The ADA requires employers
to treat all employees the same. The law
applies to all aspects
of the employment process: the job
application procedure, hiring, promotion,
discharge, employee compensation,
job training, leaves of absence, sick leave,
other leave and fringe benefits.
Federal Rehabilitation Act (FRA)
The FRA applies the standards set
by the ADA to employees of
the federal government.
Family and Medical Leave Act
of 1993 (FMLA)
This federal law was passed to
make sure people have
time off from work to take care of themselves
or a family member in need. The law
requires some employers to provide up
to 12 weeks of unpaid, job-protected
leave to eligible employees
for certain family and medical reasons.
FMLA applies to employers with 50 or
For more information about
the above laws, see the Resources
Aging With Dignity
Advocates for the needs of elders and their
caregivers, with emphasis on improving care
for those at the end of life. Offers the
Five Wishes advance directive (legally valid
in North Carolina).
American Bar Association Commission
on Women in the Profession
Sponsors the Breast Cancer Legal Advocacy
Initiative, offering information, resources
and breast cancer pro bono (free) lawyer
referrals throughout the country. Publishes
the brochure, “Ten Steps to Protecting
the Legal Rights of Breast Cancer Patients.”
American Cancer Society (ACS)
800.ACS.2345 or 866.228.4327 (TTY)
Provides information and services for all
forms of cancer, diagnosis, treatment and
many other topics. Free educational materials
available on a wide variety of topics relating
to cancer, including: insurance, legal matters
and employment discrimination.
Provides free, professional telephone counseling
from trained social workers to cancer patients
and their family members. Offers information
about employment discrimination, rights in
the workplace, re-entering the workforce.
Cancer Legal Resource Center
Western Law Center for Disability Rights
213.736.1455 or 213.736.8310 (TDD)
Provides information and educational outreach
on cancer-related legal issues to people
with cancer, their families, friends and
employers. Provides prompt, confidential
information to callers.
703.837.1500 or 800.658.8898
Helps patients and families participate in
end-of-life decision making. Has educational
booklets and videos about end-of-life issues.
Provides state-specific living wills and
medical powers of attorney.
Equal Employment Opportunities Commission
704.344.6682 or 800.669.4000
Has information about employment, job discrimination,
Federal laws such as the Americans with Disabilities
Act, how to file a charge of employment discrimination,
and more. Hotline is also for Spanish speakers.
Job Accommodation Network
An international toll-free consulting service
that provides information about accommodating
people with disabilities on the job and their
Judges and Lawyers Breast Cancer Alert
212.289.9720 or 212.759.6630 (Hotline)
Provides relevant breast cancer information
and peer support hotline for legal professionals.
National Breast Cancer Coalition/Fund
202.296.7477 or 866.624.5307 (to order Guide)
Advocates for laws on behalf of breast cancer
patients. Publishes the Guide to Quality
Breast Cancer Care, which includes information
on patient rights and insurance.
Cancer Information Service
Has information about employment and legal
rights in “Facing Forward: Life after
National Coalition for Cancer Survivorship
Offers free booklets about cancer, health
insurance and employment rights for cancer
National Partnership for Women and Families
Has employment information, also available
in Spanish. Offers free booklets on HIPAA
and the Family and Medical Leave Act.
North Carolina Bar Association
919.677.8574 or 800.662.7660
Offers the North Carolina Lawyer Referral
Service to help find a lawyer (see www.ncbar.org/public/lrs).
Can also refer for pro bono (free or reduced
cost) lawyers. Spanish language services
Patient Advocate Foundation (PAF)
Serves as an active liaison between the patient
and their insurer, employer and/or creditors
to help with insurance issues, job discrimination
and debt crisis matters relating to their
diagnosis. Offers free booklets (available
in Spanish) about job discrimination and
health insurance appeals. Also has a co-pay
U.S. Department of Justice
800.514.0301 or 800.514.0383 (TDD)
Comprehensive information about the Americans
with Disabilities Act.
Books and More
The Complete Financial, Legal, and Practical
Guide for Living with a Life-Challenging
Condition, by David S. Landay (2000). Written
by an attorney with experience in cancer
matters. Offers information about health
and life insurance, disability, job issues,
financial and end-of-life planning.
the Legal Challenges: A Resource Guide
for Women with Breast Cancer (1998). Free to women with breast
cancer, this booklet has information (some
specific to California) about legal rights
for women with breast cancer. Contact the
Law Center 213.637.9900 or www.cwlc.org.
Cancer and Careers
A resource for working women with cancer
and their employers, coworkers and caregivers.
North Carolina Hospital Association
Offers living wills, health care powers of
attorney, and the Patient’s Bill of
Rights online. Click on Public, then see
menu items at left. Also available in Spanish.
Y-ME - Breast Cancer in the Workplace
Brief discussion of issues and concerns of
breast cancer survivors and the workplace.