Employees who need to take care of a disabled relative may be eligible for
Likewise, employees sometimes think their employers must provide them with reasonable accommodations so they can care for a disabled relative under the ADA’s so-called association clause. That’s simply not true.
The association clause prohibits discrimination against employees or applicants because they have a disabled relative, based strictly on the relative’s disability or the belief that the employee will have to take time off to care for the relative. Thus, it is illegal to refuse to hire an applicant with a disabled relative because of increased insurance or medical costs or based on the fear that the employee will be unreliable due to care-giving responsibilities.
It is not illegal under the association clause, however, to fire an employee for missing work to care for the relative if the employee doesn’t have FMLA or other leave available.
Recent case: Brenda Erdman worked for Nationwide Insurance for years. When she gave birth to a child with Down syndrome, she asked to work part time. Nationwide granted her request, and for several years all went well. Then the company asked Erdman to come back to work full time and she agreed.
The week she returned to work full time, she put in a request for vacation for the month of August in order to prepare her daughter for school. Nationwide rejected her request, so she put in an FMLA leave request instead. Two days later, she was fired.
She sued, alleging that she was punished for requesting FMLA leave and for her association with a disabled person.
In court, Nationwide first argued that Erdman wasn’t eligible for FMLA leave because she hadn’t worked 1,250 hours or more in the preceding 12 months. But the court added in time that Erdman had worked from home in addition to her paid time, which put her over the hour limit. It said her FMLA case could go to trial.
However, the court rejected Erdman’s ADA association claim. It explained that, while employers can’t fire employees for associating with a disabled relative, that doesn’t mean they are entitled to time off to care for them under the ADA. (Erdman v. Nationwide Insurance, No. 07-3796, 3rd Cir., 2009)
Final note: Hours worked “off the clock” count toward FMLA eligibility if the employer knows about those hours. In this case, the employer knew because it regularly gave Erdman comp time for her extra hours. Erdman was an hourly employee, and her supervisor had made it clear that employees shouldn’t work overtime. Instead, there was an informal agreement for Erdman to work from home in exchange for extra vacation time instead of pay.
Such an arrangement is illegal under the Fair Labor Standards Act for private employers. Under most circumstances, hourly employees must be paid for all hours worked.
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