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Caregiver leave: Was this firing disability discrimination?

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in Firing,FMLA Guidelines,Human Resources

A little more than year after Mindy began working at Valega’s Pro­­fessional Home Cleaning in Medina, her husband was diagnosed with cancer. One week after Valega’s approved Mindy’s FMLA leave, it fired her for insubordination, based 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, Mindy filed a disability-discrimination lawsuit.

The court dismissed her claims, concluding that employers are not required to provide reasonable accom­­modations to employees associated to those with a disability. (Adams v. Valega’s Professional Home Cleaning, No. 12-644, N.D. Ohio, 2012)

No association protection?

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, which covers Ohio, “employers are not required to provide reasonable accommodations to non-disabled workers under this section of the Act.”

The court’s decision 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.”

Case makes key point

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 em­­ployer, and an employee is eligible for FMLA leave, 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 Valega’s Professional Home Cleaning was too small to be covered by the FMLA, and dismissed Mindy’s FMLA claim.

The key: You must analyze both statutes—the ADA and the FMLA—before you can conclude that you don’t have any obligation to provide time off.

How much to risk?

I cannot overstate just 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.

Read Jon Hyman’s employment law blog.

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