Employers rights: when an employee is diagnosed with cancer

Recognising that the employer plays a role in the cancer treatment process of an employee, is an important step for both the employee and the employer. The question is where can you, as an employer and your company, help an employee through their cancer journey in a way that ensures both the employer’s and the employee’s rights are considered?

Most employers take an active interest in the health of their employees but with one in six South African men and one in eight South African women at risk of being diagnosed with cancer during their lifetime, it is likely that cancer will affect most companies as some point in time.

Much of the impact of a cancer diagnosis on the employer will stem from the illness’ indirect costs such as, loss of short term productivity due to the employee’s absence or reduced productivity, during treatment, or the loss of skills and knowledge if the employee is no long able to continue to work. Any employer is able to mitigate the risk of such impacts by being informed and prepared for dealing with a potential diagnosis; such mitigation begins with understanding the cancer patient’s journey. Understanding the treatment, side effects and prognosis of an employee, cancer diagnosis will help employers and employees work together to develop strategies during and after the employee’s cancer treatment.

To ensure that both yours and the employee’s rights are upheld and that there is a clear understanding of the steps to be undertaken when dealing with an employee’s cancer diagnosis, be ready with answers relating to your company’s cancer and sick leave policies and provide this information to the employee as soon as possible. It’s vital that both the employee and the employer have a clear understanding when it comes to the treatment, side effects and company leave policies from the outset.

Give the employee as much information on the company’s medical scheme, if applicable, or leave policies as possible. Work with your employee to figure out how much time they’ll need off and whether their treatment plans allow them to continue working. If there is a clear understanding, communication and an action plan between the employer and employee on how you will both handle the period when the employee (or their loved one) is receiving treatment for their cancer, a lot of ambiguity and potential discord will be avoided.

South African Labour Law makes provision for certain rights to be afforded to employees. As an employer of someone diagnosed with cancer you will need to ensure these rights are upheld. These include: the right not to be unfairly dismissed or subjected to unfair labour practice as a result of having been diagnosed with cancer, the right to sick leave, the right not to be unfairly discriminated against and the right to be provided with a safe working environment.

An employer has the right to dismiss an employee if the employee is medically incapable of rendering services to the employer. However, the employer has the obligation, if he wishes to dismiss an employee to ensure that there is a fair reason to dismiss the employee and also that it follows a fair procedure in effecting the dismissal. Being diagnosed with cancer does not automatically imply that the employee is medically incapacitated to the point where dismissal is justified. An employee who has been unfairly dismissed or discriminated against as a result of having being diagnosed with cancer would be entitled to challenge the fairness of his/her dismissal before an appropriate forum.

Employees should also be made aware that once their sick leave is exhausted, any time off due to illness or for treatment may require the employee to take annual leave, or request the employer to allow a period of unpaid leave. It should be noted that in terms South African employment legislation, there is no entitlement to unpaid leave. An employee cannot simply refuse or fail to attend work without receiving authorisation to do so from their employer.

An employer should always be wary of acting against an employee merely because the employer has found out that the employee has cancer and without acquiring sufficient knowledge to objectively determine that the employment relationship is adversely affected by the condition.

As a patient advocacy organisation, we encourage employers to initiate the implementation of programs to facilitate voluntary communication by employees to learn and deal with an employee’s circumstances, know the course of the current and expected treatment programme and how the employee’s cancer journey may affect his/her ability to perform his work duties.

Adapted from a www.campaign4cancer.co.za article.