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ADA Blog #145 (Part 2 of 2)

DOES THE A#DA REQUIRE EMPLOYERS HAVE TO PROVIDE A REASONABLE #ACCOMMODATION FOR FAMILY MEMBERS WITH A #DISABILITY? (Part 2)

It’s important to first understand who is protected by the #ADA.

1. Only applicants and existing employees with an “actual disability” or “record of disability” qualify for reasonable #accommodation.

In addition, the #ADA also protects people from #discrimination based on their relationship with a person with a #disability (even if they do not themselves have a #disability). For example, it’s illegal to refuse to hire an applicant or fire an employee because the spouse has a #disability.

2. Individuals who only meet the “regarded as” definition of #disability aren’t entitled to reasonable #accommodation. For example, #employers aren’t required to provide reasonable #accommodation to an #employee whose #cancer is in remission or to an #employee who is the #parent of a #child with a #disability.

There’s a fine line between #firing an #employee because of a relative’s #disability vs. #firing an #employee because of a need to take time off to care for that relative.

Let’s look at the #ADA's legislative history:

"[A]ssume, for example, that an applicant applies for a job and #discloses to the employer that his or her spouse has a #disability; the #employer believes the applicant is qualified for the job. The #employer, however, assuming without foundation that the applicant will have to miss work or frequently leave work early or both, in order to care for his or her spouse, declines to hire the individual for such reasons. Such a refusal is prohibited….

"In contrast, assume that the #employer hires the #applicant. If he or she #violates a neutral employer #policy concerning #attendance or #tardiness, he or she may be #dismissed even if the reason for the #absence or #tardiness is to care for the spouse. The #employer need not provide any #accommodation to the nondisabled #employee. The individuals covered under this section are any individuals who are #discriminated against because of their known association with an individual with a #disability."

The situation described is a real case (#Adams v. #Valega's Professional Home Cleaning (N.D. Ohio 11/2/12). Although the court dismissed the employee’s claims, concluding that #employers are not required to provide reasonable #accommodations to employees associated to those with a #disability.

Employer Tips: Use extreme caution when making negative #employment decisions.

1. Base decisions on objective facts, not assumptions. For example: it’s #illegal to refuse to hire an #applicant who #discloses she/he has a child with a #disability because you fear they might have to miss work due to the child’s higher risk of #illness or be #absent frequently because the child needs to attend #therapy sessions.

2. Familiarity with all #laws that affect #employment is critical. Existing #employees in similar situations aren’t entitled to reasonable #accommodation under the #ADA; however, other laws may require #employers to provide leave. In addition to the #ADA, #state or #local #laws may provide broader protections for #caregivers. A particular #caregiver also may have certain rights under other #federal #laws, including the #Family and #Medical #Leave #Act.

3. An #employee may be #fired under a neutral policy concerning #attendance or #tardiness, even if the reason for the #absence or #tardiness is to care for the spouse or child with a #disability. There is a distinction between #firing an #employee because of a relative's #disability, and #firing an employee because of the need to take time off to care for the relative.

 

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.