September 21, 2010

CANCER IS A DISABILITY UNDER ADAAA — EVEN IN REMISSION

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Judge Rudy Lazano of the District Court for the Northern Division of Indiana ruled that cancer is a disability under the ADA Amendments Act (ADAAA) even if it is in remission (Hoffman v. Carefirst of Fort Wayne [2010 U.S. Dist. LEXIS 90879, 8/31/10]. Hoffman, a service technician, had surgery for Stage III Renal Cancer, and was told 13 months later that he would have to begin working 65 to 70 hours a week, as were all similarly situated service technicians. However, Hoffman produced a doctor’s note limiting him to a 40-hour work week, and Carefirst responded with an accommodation permitting him to work the 40-hour week, but in a territory that was 2-3 hours from his home and prior route. Hoffman did not return to work and sued under the ADA. Carefirst argued that Hoffman did not meet the definition of disability because in his cancer was in remission, he was working regularly, and therefore, was not substantially limited with respect to a major life activity. Carefirst also argued it made a reasonable accommodation that Hoffman refused to accept. Judge Lazano denied summary judgment on both arguments.

Historically, cancer patients who were in remission and who worked regularly were precluded from the definition of disability because they could not cite a substantially limited major life activity (see for example Andrews v. Jones Truck Lines,1990 [741 F.Supp. 867]). However, interpreting the ADAAA, Judge Lazano ruled that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active” On the issue of reasonable accommodation, Judge Lazano ruled that the burden is on Carefirst to prove that Hoffman’s request to work his normal route is an undue hardship.

As far as I can tell, the ruling on remission is a first under the ADAAA, and represents a major change in how courts have traditionally viewed diseases that go into remission such as cancer Tuberculosis.

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