Tuesday, November 13, 2012

Must an employer accommodate an employee for a family member’s disability?


A little more than year after Mindy Adams began working for Servpro, her husband was diagnosed with cancer. One week after Servpro approved Adams’s FMLA leave, it fired her for insubordination, relying on statements from customers and co-workers that she had been disrespectful, exhibited a poor attitude, and failed to perform her job properly. Believing that the real reason for her termination was the need for time off to care for her ill husband, Adams sued for disability discrimination.

In Adams v. Valega’s Professional Home Cleaning (N.D. Ohio 11/2/12), the court dismissed her claims, concluding that employers are not required to provide reasonable accommodations to employees associated to those with a disability.

In addition to protecting disabled employees, the ADA also protects employees from discrimination based on the “known disability of an individual with whom the qualified individual is known to have a relationship or association.” Yet, at least in the 6th Circuit, “employers are not required to provide reasonable accommodations to non-disabled workers under this section of the Act.”

The Adams court illustrates this rule:

For example, 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 disabled spouse. 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.

The court recognized and discussed the fine line 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 that same relative (quoting 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.”

There are two points to make about this case:

  1. A refusal to grant time off as an accommodation for the disability of an employee’s family member will only pass muster for employers too small to be covered by the FMLA or employees who did not work long enough to be eligible for FMLA leave. If you are an FMLA-covered employee, and an employee is FMLA eligible, then he or she is entitled to 12 annual weeks of leave, which includes leave for the serious health condition of a close family member. The court concluded that Servpro was too small to be covered by the FMLA, and dismissed Adams’s FMLA claim. You must analyze both statues—the ADA and the FMLA—before you can conclude that you don’t have any obligation to provide time off.

  2. I cannot over-state enough how fine a line it is between lawfully terminating an employee because of the need to take time off to care for an ill relative, and unlawfully terminating an employee because of a relative’s disability. These decisions are risky, and need to be made carefully. Nine times out of 10, firing an employee who recently asked for time off to care for an ill family member will result in litigation. You need to decide whether you can swallow that risk before you make the termination decision.

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