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‘Association’ with disabled no automatic assurance of leave

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

The ADA makes it illegal to discriminate against employees because of their “association” with disabled people. Courts have interpreted that to mean employers can’t reject applicants simply on the assumption that they will miss work to care for a disabled family member.

But what about disciplining an employee for taking time off to care for the disabled person? According to a recent Pennsylvania case, that’s perfectly OK—as long as FMLA leave is not involved.

Essentially, nondisabled employees who care for disabled people aren’t entitled to time off as an ADA accommodation.

Recent case: Brenda Erdman worked for Nationwide Insurance and gave birth to a disabled daughter. She returned to work, asking for a modified schedule—adding up to less than 1,250 hours annually. After several years, Nationwide told her to return to full-time work or she would lose her job. She asked for more time off and was fired.

Erdman sued, arguing that Nationwide violated the ADA because it punished her for her association with a disabled person. But the court disagreed. It reasoned that employers couldn’t refuse to hire someone or take disciplinary action because of presumptions about how much time off an applicant or employee might take, but they can terminate an employee because of prior time off to care for the disabled person.

The court tossed out her case but said the decision would have been different if Erdman had been eligible for FMLA leave (she had worked less than the FMLA-mandated 1,250 hours in the previous year) or if others were given time off for other reasons. (Erdman v. Nationwide, No. 1:05-CV-0944, MD PA, 2007)

Final note: Before you terminate or discipline someone who has missed work because of her association with a disabled person, run an FMLA analysis. If the employee was caring for a disabled child, parent or spouse, the time may qualify for FMLA leave. Make sure you can justify your decision with a legitimate business reason, such as scheduling. Otherwise, your decision may look like retaliation, especially if the employee took earlier FMLA leave.

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