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When employees help sick relatives, beware disability association discrimination

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in Discrimination and Harassment,Human Resources

Employers that discriminate against employees who “associate” with disabled individuals face potential liability under the Cali­­for­­nia Fair Employ­­ment and Hous­­ing Act (FEHA). This kind of discrimination comes in many forms.

For example, association discrimination might include fears that an em­­­­ployee whose partner has HIV may also have become infected through sexual contact or that an employee who has an identical twin with a genetic disease may develop the disability as well.

Distraction discrimination in­­cludes discharging an employee because he is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that he would need an accommodation (such as different hours) to perform well.

Expense discrimination includes firing or refusing to hire someone because a relative has a serious health problem that could drive up insurance rates or otherwise affect the health care budget.

Recent case: Scott was hired in September and shortly after told his supervisor that in February he was going to donate a kidney to his ailing sister. He asked for leave to undergo surgery and recover. Meanwhile, he got good reviews and never had any complaints about his work. While he did take time off for doctor visits, these always took place during his lunch break.

Late in the year, Scott ­discovered that a new law would go into effect on Jan. 1, 2011. The law, the Michelle Maykin Memorial Donation Pro­­tec­­tion Act (DPA), requires em­­ployers with 15 or more employees to provide 30 days of paid leave to employees who donate organs. Scott told his supervisor he wanted to take advantage of the paid leave and might also need additional time off if his recovery was lengthy.

Scott was fired two days before the law went into effect, allegedly for poor performance.

He sued, alleging disability association discrimination of the expense variety. Scott argued that as soon as his employer learned his leave would be paid, it pre-emptively fired him.

The court said he could take his claim to a jury. If Scott can show he was fired not for poor performance but because helping his disabled sister with a transplant would have cost the company money, he has a case. (Rope v. Auto-Chlor of Washington, No. B242003, Court of Appeal of Cali­­for­­nia, 2nd Appellate District, 2013)

Final note: If you aren’t familiar with the DPA, now is a good time to read up. As more and more Cali­­for­­nians begin receiving health insurance coverage through the Afford­­able Care Act’s insurance exchange or expanded Medicaid programs, there may be an increase in diagnosed illnesses that require transplants. You may therefore see more requests for DPA leave.

DPA requires 30 days of paid leave for organ donations and up to five days of paid leave for bone marrow donations. You can require employees to use up to 15 days of accrued paid time off for organ donations and five days for bone marrow transplants.

During the paid leave, employers must maintain existing group health coverage. Employees continue to accrue paid time off and other benefits as if they had worked without interruption.

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