It’s about more than you – employment and HR
United States: It’s about more than you
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Even if things return to “normal” (or “new normal”), the lingering effects of the COVID-19 pandemic will be long lasting. One of those effects is the number of discrimination charges and corresponding litigation filed by employees who had to care for family members during the pandemic. Consider this scenario:
- The employee works for a large company that has too many employees to be covered by the Families First Coronavirus Cares Act. The employee was viewed as a critical worker throughout the pandemic, and the employee’s duties could not be performed effectively remotely.
- As a result, the possibilities for the employee to work remotely were limited or nonexistent. The employee has a young child who has asthma and was exposed to COVID-19 at the daycare.
- The child was quarantined, banned from attending daycare for 10 days, and suffered severe respiratory problems after quarantine ended. The employee, the only caregiver, was required to stay at home.
- After the child’s recovery, the employee claims to have lost employment opportunities, was penalized for taking too many days off, had to exhaust accumulated vacation and possibly take unpaid leave.
- The employee claims discrimination because of his âassociation with a disabled personâ. He files a complaint with the EEOC to this effect and alleges violations of federal and state law.
The above COVID-19 scenario – one of what is sure to be endless variety – is a good reminder of a provision in the Americans with Disabilities Act (ADA) that prohibits discrimination on the basis of association. . Specifically, the ADA says that discrimination on the basis of disability can consist of “excluding or denying jobs or equal benefits to a qualified person because of the known disability of a person with whom the qualified person is known to have a relationship or association “. 42 USC Â§ 12112 (b) (4).
This provision is not frequently invoked, but a recent case serves as a good reminder of compliance. On June 25, 2021, the United States Court of Appeals for the Eleventh Circuit (covering Alabama, Florida and Georgia) refused to apply the theory of “association” to state law of Florida prohibiting discrimination on the basis of disability on the basis of the association. (Carolina Rose Matamoros v. Broward Sheriff’s Office, No. 19-13448), but specifically cited the ADA’s âassociationâ 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?
- If action needs to be taken against an employee for absence or excessive lateness, do you know why the employee is absent or late? Why is the employee looking after another? If so, be sure to apply the absence policy equally to all employees. For example, the following reasons for absence should generally be treated the same: i) the employee has the flu for two weeks; ii) the employee is caring for a child with influenza; iii) the employee is absent the equivalent of two weeks out of a six-month period to care for a child with asthma.
- By making the above request, acknowledge that the ADA does not specify how closely the employee must be related or associated with the individual. Indeed, the EEOC considers that a family relationship is not even required. The key is blind application of your policies.
- While the ADA does not require an employer to provide reasonable accommodation to an employee because of their relationship or association with a person with a disability, think concretely about what can be done to help an employee who try to take care of another. A complaint of discrimination based on association can very well be avoided by working with the employee to allow him the flexibility to deal with another. Be creative and think broadly about what can be done so that the employee can continue to work effectively while respecting the obligation to care for a person with a disability.
The above scenario and case is just another example of the need for employers to know that employees face challenges at work when trying to meet the needs of a person with a disability with whom they can. be associated or with whom they have a relationship. And employers can’t just dismiss these considerations because the ADA’s legal protections extend beyond employees with disabilities.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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