WORKING WITH CANCER: KNOW YOUR EMPLOYEE RIGHTS
As a breast cancer patient, medical expenses may weigh heavy on your shoulders, among other things. Unfortunately, you might face discrimination from your employer, as they may assume you will be less productive or perform below expectations.1 Other examples of mistreatment can include being overlooked for promotions or new positions, or being left out of training opportunities when you are on sick leave.1 Should you find yourself being mistreated, you must know if and how Hong Kong laws can protect you.
As an employee with a chronic illness, your rights are listed in the Disability Discrimination Ordinance (DDO) and the Employment Ordinance.
CAN MY EMPLOYER DISMISS ME DURING MY SICK LEAVE?2
According to the Employment Ordinance, it is unlawful to fire you during sick leave unless you have committed serious misconduct.
If convicted, your employer must compensate you within 7 days:
- Wages in lieu of notice;
- A further sum of 7 days' worth of wages; and
- Sickness allowance you are entitled to
CAN MY EMPLOYER DISMISS ME BECAUSE I HAVE CANCER?
According to section 2(1) of the DDO, the definition of "disability" includes:
- Total or partial loss of the person's bodily or mental functions
Cancer is a chronic illness that leads to the loss of normal immune system function; thus, it is classified as a disability, meaning you are protected by the DDO.3
Of course, there may be a chance that your employer will use other reasons to justify their action of firing you. A common one is saying that you can no longer perform your job sufficiently.
Indeed, under section 12(2) of the DDO, employers can fire someone who can no longer carry out the inherent requirement of that job.4
An inherent requirement is fundamental for achieving a job's goal. For example, a gym instructor must be able to run around and exercise with gym-goers. Therefore, a gym owner is in the right for firing a trainer who loses their legs.4
As cancer patients often do not show visible physical disability, it can be hard to determine your ability to do the job. So how should you prove you can perform a job's inherent requirement?
Take this example: if you are a math teacher, your job's inherent requirement would be "teaching math"; the proof would be your degree and years of experience. As long as you have these proofs, you can perform the inherent requirement. Having cancer does not diminish your ability to do the job, unless you become too ill to conduct lessons.4
I CAN PERFORM THE INHERENT REQUIREMENT, BUT ONLY WITH SOME ACCOMMODATIONS BY THE EMPLOYER
Cancer patients must visit hospitals often, and the treatments will often leave patients tired. Such circumstances may collide with physically demanding jobs or jobs which require constant availability. Therefore, your performance may drop even though you can fulfil your job’s inherent requirement.
According to the Code of Practice on Employment under the DDO, you can ask your employer to make adjustments in aiding your job performance. For instance, your employer should allow you to work from home and a more flexible work schedule – this is called Reasonable Accommodation. Your employer is responsible for providing services and facilities to ensure you have an equal opportunity in the workplace.5
However, according to the Code of Practice on Employment, section 12(2) and section 4 of the DDO, your employer can fire you if they must spend a large amount of money to accommodate you, especially if the employer has a limited financial capacity, and accommodating you can put them in financial hardship.5
The DDO also applies to job seekers. If you suspect your job application is ignored due to cancer, then the prospective employer may have violated the DDO. Vice versa, the employer can turn down your application because you cannot perform that job’s inherent requirement. Once hired, you should be able to ask your new employer for reasonable accommodations.4