ADA Prohibits Discrimination on Foundation of Affiliation: Employers Publish-COVID

Even if things get “normal” (or “new normal”) back, the ongoing effects of the COVID-19 pandemic will be felt for a long time to come. One such impact is the number of discrimination charges and related lawsuits from employees caring for family members during the pandemic. Consider this scenario:

  • The employee works for a large company that has too many employees to fall under the Families First Coronavirus Cares Act. The employee was viewed as an essential worker throughout the pandemic and the employee’s work tasks could not be effectively performed remotely.

  • As a result, the ability for the employee to work remotely was limited or non-existent. The employee has a young child who has asthma and who was exposed to COVID-19 in the daycare.

  • The child had to be quarantined, was not allowed to attend a daycare center for 10 days and suffered significant breathing problems after the end of the quarantine. The employee, the sole caregiver, had to stay at home.

  • After the child recovered, the worker claimed to have lost his job opportunities, was fined for taking too many days off, had to exhaust the accrued vacation and eventually take unpaid vacation.

  • The employee claims discrimination because of his “connection with a person with a disability”. “He is filing an EEOC indictment for this purpose, alleging violations of state and federal law.

The above COVID-19 scenario – one of certainly an infinite number – is a good reminder of a provision in the Americans with Disabilities Act (ADA) that prohibits association discrimination. Specifically, the ADA says that disability discrimination may be “excluding or otherwise denying a qualified person equal jobs or benefits based on the known disability of a person with whom the qualified person is known to have a relationship or connection.” 42 USC § 12112 (b) (4).

This provision is not often used, but a new case serves as a good reminder of compliance. At the 25th Broward Sheriff’s Office, No. 19-13448), but specifically cited the ADA’s “Association” provision as a viable basis for employees to allege discrimination. The case is a good reminder that employers need to think about more than the individual employee. Federal law also extends to those with whom the employee is associated.

So what should an employer do?

  1. If an employee is to be dealt with for excessive absenteeism or delay, do you know why the employee is absent or late? Is the reason that the employee cares about someone else? In this case, make sure that you apply the out of office policy equally to all employees. For example, the following reasons for absenteeism should generally be treated equally – i) the employee has had flu for two weeks; ii) the employee is caring for a child who has flu; iii) The employee is absent for two weeks within a six month period to care for a child suffering from asthma.

  2. With the request above, note that the ADA does not specify how closely the employee must be related or related to the person. Indeed, the EEOC takes the position that a family relationship is not even required. The key is indiscriminately enforcing your policies.

  3. Even if the ADA does not require employers to provide reasonable accommodation to an employee because of their relationship or connection with someone with a disability, practical considerations are what can be done to help an employee who is caring for another. A right to be discriminated on grounds of association can be avoided by working with the worker to give him flexibility in caring for another. Be creative and think broadly about what can be done to keep the employee working effectively while fulfilling their obligation to care for a person with a disability.

The above scenario and case study is just another example of employers needing to be aware that workers face challenges at work when trying to meet the needs of a person with a disability that they may be associated with or with whom they have a relationship. And employers cannot simply dismiss these considerations because ADA’s legal protection extends beyond workers with disabilities.

© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 187

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