Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about cancer, COVID-19 and the workplace. Our guest is Ann Hodges, a professor emerita at the University of Richmond and 30-year cancer survivor.
She co-founded an organization called CancerLINC, which has helped countless people with cancer navigate myriad issues, including those related to employment law.
In this interview, she explains the complicated legal landscape that employers and cancer patients face in the working world, how COVID-19 is shaping the future of work for people with cancer (and other illnesses) and the conflicts of interest that administrators of disability plans deal with when deciding whether to approve benefits. The supplemental materials and episode transcript are available below.
Ann Hodges’ University of Richmond faculty profile.
7:52 | Hodges, Ann. (2018). Modernizing Disability Income for Cancer Survivors. Hofstra Labor & Employment Law Journal, 35(2).
14:00 | Comparison of Federal vs. State vs. Private Disability Benefits. Patient Advocate Foundation.
8:30 | (2022). Department Of Labor Announces Streamlined Claims Process For Federal Firefighters With Certain Occupational Illnesses. U.S. Department of Labor.
Watch this news report with Hodges to hear more about the impact of CancerLINC.
I. RETURNING CONTROL TO THOSE WHO HAVE LOST IT
Matt Crossman, Host: What is CancerLINC and why did you start it?
Ann Hodges: So CancerLINC is an organization that helps cancer patients and their families with the issues that arise out of cancer that are not medical issues. Typically those are financial issues and/or legal issues. Those issues are not what we first think about when we think about cancer.
Of course, we first think about the medical issues. But these legal and financial issues can be very stressful and difficult for individuals who are dealing with cancer. So the goal of CancerLINC is to lift that burden of those legal and financial issues from the patients and their families so that they can focus on the healing, the medical issues, getting well, and spending time with each other.
MC: You were already an employment law expert before this, and this gave you an entirely new education on the subject. You’re a survivor yourself, which I would like for you to speak to as you answer this question. What did you learn about employment law by being in the trenches, both yourself and helping others, that would be valuable for HR people and employment law attorneys to know?
AH: I had a bout with breast cancer back in 1992. I’m a 30-year survivor of cancer. What we often feel when we have cancer is a loss of control, and I’m a person that likes to be in control, as most of us do. And cancer comes into your life, and you lose that control over a lot of things.
I did not have some of the difficulties that I have seen other cancer patients deal with when I had my own bout with cancer. My employer was terrific. My journey was relatively easy, as these things go.
As I was recovering, a friend introduced me to another employment lawyer, Phyllis Katz, who was also a cancer survivor. She has become a dear friend. She had struggles with her own bout with breast cancer that I hadn’t faced and had come to the realization that lawyers could provide significant help to those dealing with cancer with some of these issues. She had this idea of starting an organization that would bring together lawyers who are supposed to provide pro bono services—that’s part of our obligation as lawyers.
She wanted to connect the lawyers providing pro bono services with cancer patients and their families that needed those services at a crucial time in their lives. And when she told me this idea, I just lit up. This is a way to take a negative experience and turn it into something positive and to get back some control.
And so the two of us, along with lots of other folks who helped along the way, started this organization. We started with a conference that brought together legal people, medical people, social workers, individuals who worked with cancer patients in all kinds of ways, and learned about these issues and talked about the various issues. We educated folks, and one of the things that we asked of the lawyers who came to this conference was to commit to doing pro bono service for individuals with cancer.
And ultimately out of this we created what was initially called Link. We now call it CancerLINC, and it’s been going now for 26 years, connecting cancer patients in the Central Virginia area with lawyers. We later expanded to financial planners to help folks with financial issues. We connect those together and really make a difference for cancer patients and their families.
MC: This sounds like a perfect example of merging a personal passion with professional development. You mentioned the pro bono work. We’re all searching for meaning in our professional lives. We all want to do good for people. For attorneys and others in the employment law space who have a passion for a topic like you do on this, what advice do you have for integrating a personal passion into your professional life?
AH: I think it’s so important to love what you do and to share that with other folks. I taught in the law school at the University of Richmond for 30 years. One of the wonderful things I’ve seen is that so many of my students and former students volunteer for CancerLINC. I go to events and I see all of these students, some of whom started doing this in law school, and they’re still doing it. Some of them have even moved to work in the field, which is just incredibly rewarding.
Sometimes it’s something that you’re not doing in your day-to-day life. We have lawyers who might be doing commercial litigation in their practice, but they learn how to help someone get Social Security disability, and they can do that on a pro bono basis. And I think that the lawyers and the financial planners who do this find it incredibly rewarding to just make a difference in somebody’s life.
The cancer patients and their families are deeply grateful for the support because it lifts a burden. It’s one of those things that weighs on you at a time when you don’t need anything weighing on you. Oh no, I’m about to lose my job, or I need to get disability benefits or, I never did a will and now I need one.
There’s so many things like that—my insurance won’t pay for the treatment that I need. I need to appeal. Even folks who are capable of doing those tasks when they feel well, when they’re sick and undergoing cancer treatment and surgery and chemotherapy, they don’t feel up to doing it.
That's one of the things that I heard from Phyllis Katz when she talked about starting this organization. She was a lawyer, and one of the things she thought was, “I’m calling up, and I’m trying to deal with these hospital bills. I’m a lawyer and I’m perfectly capable of doing this when I feel OK, but I don’t even have the energy to be on hold on the telephone to wait for somebody to talk to me because I’m sick.” So there are lots of ways that burden can be lifted.
II. THE CHALLENGES OF SICK LEAVE
MC: In an article a few years ago, you wrote that the law has not kept up with medical developments to the detriment of cancer survivors. Speaking of employment law specifically, how so? And has the law caught up at all?
AH: Well, In one way, I’m hopeful that covid may have helped the law catch up a little bit.
When I looked at the law a few years ago, one of the issues for many cancer patients and survivors is they need some sort of accommodation to enable them to continue to work.
So we have the Americans with Disabilities Act, which is of course a federal law. And that law does require accommodation for individuals with disabilities. It’s pretty clear now, although it wasn’t always, that cancer is a disability in most cases. The law has improved in that respect in part with some amendments to the law that occurred a number of years ago.
But one of the accommodations that the courts were often rejecting was work at home. And the courts were pretty easily accepting an employer’s rationale that, “Well, work at home just isn’t going to work for this particular job.”
And of course there are some jobs where it won’t work, right? If you work in a grocery store as a cashier, you can’t work at home. On the other hand, we have learned as a result of the pandemic that there’s lots of stuff that can be done at home, and it works.
I’m hopeful that as we start to see those cases now, one, employers are going to be more willing to accept that in fact, employees can work at home, and it works. And two, that the courts are going to be more willing to say, “Wait a minute, employer. Just because this person has to meet with lots of people during the course of the day doesn’t mean that they actually have to be in the workplace for those meetings to occur.” We now know Zoom or other virtual meeting platforms work just fine, so I’m hopeful about that.
In some other areas, I think we need some legislative change. For example, the only national requirement for leave is for unpaid leave for 12 weeks, and that only applies to employees who work for employers that have 50 or more employees, and it only applies to employees who have worked for the employer for at least a year.
And they have to have worked 1,250 hours in the previous year in order to be eligible for this leave. That leaves out a whole lot of people. People that work for smaller employers. People who are short-term employees. So you might have worked for an employer for 30 years and if you changed jobs right before you came down with cancer, you don’t get family medical leave.
It doesn’t cover a lot of part-time workers because they have to have worked that minimum number of hours. We are virtually the only developed country that doesn’t have any sort of national requirement for paid sick leave.
Now there are a few states that have paid sick leave requirements. But they tend to be a week of paid sick leave. If you’re lucky, you get 12 weeks of unpaid leave. A lot of people can’t go 12 weeks without income, and often 12 weeks is not enough for cancer survivors. If someone is undergoing chemotherapy, they might not be able to get back in 12 weeks. They might be able to get back in 24 weeks, but if they need 24 weeks, they can be terminated essentially because they’re not required to get more than 12 weeks.
So I think there’s a lot to be done there. We’re starting to see more states enact paid leave requirements, but again, they’re pretty short. So I think paid leave would be huge. The Americans with Disabilities Act accommodation requirement can provide additional leave. But again, courts are pretty reluctant to require extensive leaves.
And of course there are cases where an employer doesn’t have the ability to cover that extended leave if somebody has a job that someone else really can’t fill in for.
People in low-paying jobs with limited training requirements suffer the most because they can’t go very long without pay. They’re easily replaceable, so they tend to get terminated, and then they don’t have a place to go back to once their treatment is over. Whereas if they were able to get some paid leave, they might be able to keep their job.
Then, if they lose their job, they go to apply for another job and the employer says, “Why’d you leave your last job?”
“Well, I was terminated because I had cancer and couldn’t go to work.”
It’s illegal not to hire someone because they had cancer, but it’s very difficult to prove that that’s the reason that you don’t get a job. And for an employer looking at someone who’s a cancer survivor, they say, “oh, cancer, possible recurrence, might miss a lot of time, might cost a lot on the health insurance.” There are a lot of financial disincentives to hire someone with that history. So I think those are all issues with the law.
III. INHERENT CONFLICTS OF INTEREST IN DISABILITY PLANS
MC: You wrote that the people who administer disability plans are often accused of conflicts of interest. How does that play out and what can companies do to avoid it?
AH: The plans I was referring to are sort of private disability plans, and in this country we have public disability plans and private plans. So the big public disability plan is Social Security disability, and that’s available to a lot of employees who have paid into the Social Security system.
But in order to get Social Security disability, you have to be permanently and totally disabled from doing any sort of work, and that disability has to last 12 months. So certainly that would cover some cancer patients and cancer survivors, but others that need shorter term disability are not covered by that program.
There are a few states that also have public disability programs, and I think those are terrific. I wish there were more of those, because those are systems where employers and employees pay into the system, and then when an employee needs disability payments they can collect them. It depends on the plan how long that is, but typically they’re longer periods than paid sick leave.
They provide less than the person was earning, but they provide some income. There are not a lot of states that have those plans. Then there are the private disability plans that an individual can go out on his or her own and simply buy. Employers sometimes provide those.
And that’s where we largely see in these private plans the conflict of interest. Because if the individual who is administering the plan determines that the individual who is applying for benefits is disabled, the plan has to pay out money. And so there is a disincentive because this is a plan that’s designed to make a profit, and so you do get lawsuits, challenging denials of disability benefits on that basis, arguing for conflict of interest.
It’s tough to avoid that, right? Because it’s a bit inherent in those plans unless the plan is set up in a way that uses a neutral administrator to make these determinations, and that typically doesn’t happen. I do think that employers can convey to their disability administrators that they don’t want to discourage findings of actual disability, because of course employers are paying for these plans in some cases. Sometimes employers and employees jointly pay, but the more people collect benefits, the higher the rates are going to be. So it’s going to affect the employer as well. And I think it’s helpful if the employer doesn’t discourage the plan from finding disability when it’s actually there.
MC: Let’s imagine I’m an attorney. Someone alleges a conflict of interest situation like you just described. What kind of fact pattern has to exist for there to be a case there?
AH: It is challenging to prove simply because there is a financial interest there. That’s pretty much inherent in the situation. So you’re looking to prove something more than that.
And often that might be proved by some sort of internal communications that you see within the disability plan. You have to find some sort of communication or evidence. Or you might find it in just very extreme cases—like it is so obvious that this person is disabled and yet they found the person wasn’t disabled.
But you have to convince a court to make a leap from that—to infer that there was some sort of intent there.
MC: What unique challenges does cancer pose for employers in terms of employment law and disability?
AH: In most cases, it’s not going to be covered by workers’ compensation, with some exceptions.
There are certain cancers that are associated with working in certain fields where there is often a presumption that a particular cancer came from a particular workplace. There are some of those for firefighters, for example. They’re exposed to certain things that cause cancer, and so there may be workers’ compensation benefits.
IV. COVID, THE VACCINE AND CHANGES IN EMPLOYMENT LAW
MC: You mentioned covid already. It’s upended the whole world. You mentioned how it appears to be upending work at-home issues. How has it changed employment law in the last three years?
AH: There’s certainly a lot of of cases that we are seeing in the area of the vaccine mandates that involve exceptions essentially from vaccine mandates, and those are still winding their way through the courts, and I think we will be getting some law on when individuals can be exempted on the basis of disability or on the basis of a religious exemption.
We’re seeing a number of those religious exemption cases. The Supreme Court is particularly sensitive to those issues of religious accommodation, and so I think we’re going to see some changing law in that area—a broader accommodation mandate on the basis of religion. I don’t think it’s exclusively coming from covid, but there are certainly those covid cases that are bringing up this issue.
There’s so much misinformation out there that it becomes challenging to deal with when you have an employee who says, “I don’t think I should have to take this vaccine” because something they read on the internet that isn’t actually scientifically based. How does the employer deal with that?
MC: Are you suggesting that everything we read on the Internet is not true?
AH: Actually, yes. That’s a challenge for employers. And if we see this broadening of the mandate for religious accommodation, not just with respect to covid, but in other sorts of areas, it’s going to be a big challenge for employers in terms of accommodating employees' religious beliefs.
We have in this country a tradition that we don’t really question people’s religious beliefs. We don’t say, “Yeah, that’s not a real religion.” Because we come from a country that was founded in part because of people who came from other countries that said, “We have a state religion, yours isn’t it, it’s not a real religion, so therefore you can’t exercise it.”
So we’re very reluctant to question people’s religious beliefs. But yet employers, if we see this broadened mandate, I think are going to struggle with “what do I have to do to accommodate this religious belief?”
For example, if I come from the religion of Ann and the religion of Ann says I don’t have to work on Fridays, does the employer have to accommodate that? And that’s obviously an extreme example, but I think we’re going to see some challenges for employers coming because of that.
MC: How can employers be ready for whatever legal challenge is going to come up the next time we have a pandemic?
AH: It’s very challenging, I think, because as we saw in covid, things evolve, right? The science evolves, our understanding evolves. You deal with it as best you can with the knowledge that you have at the moment. But that could change. I would say flexibility is important.
And I know employers don’t like this notion of flexibility, because if I’m flexible, somebody’s going to accuse me of discriminating against or in favor of someone. But I think sort of reasonableness and flexibility and going with the best information that’s available at the time is I think the best we can say at this point.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on February 27, 2023.
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