While most employers are aware of the general provisions of the Americans with Disabilities Act (ADA), the “association provision” of the ADA has remained generally overlooked and could subject employers to significant liability if not appropriately understood.
Pursuant to the association provision of the ADA, an employer may not take adverse employment actions against an employee or job applicant who associates with someone with a known disability. 42 U.S.C. §12112(b)(4). The disability status of that employee or job applicant is of no consequence. Id. For example, an employer would violate this provision if it interviews candidates for a position, finds the most qualified candidate, yet does not choose to hire that candidate because the employer is aware of the candidate’s daughter’s long-term illness and believes this will have a detrimental effect on the candidate’s work performance and attendance. Although this example demonstrates a situation where the association is familial, the association may be irrespective of a familial relationship under the ADA. 29 C.F.R. § 1630.8.
The association provision, however, does not require employers to accommodate the schedule of an employee who may be caring for a disabled relative. Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510 (3d Cir. 2009). An employer must only provide reasonable accommodations to qualified disabled applicants or employees. Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1084 (10th Cir. 2007). Thus, an employer does not need to adjust an existing leave policy or permit absenteeism or tardiness for an employee associated with a disabled individual as a reasonable accommodation. Notably, the employer must be aware of the association and it must be the motivating factor in the adverse employment action. Erdman. 582 F. Supp. at 510 (citing Den Hartog, 129 F.3d at 1085).
There is a substantial difference between firing an employee because of a relative’s disability and firing an employee based on the employee taking excessive time off to care for the relative. Erdman, 582 F.3d at 510 (emphasis added). If an employee is terminated for tardiness or absenteeism, even if the reasoning is based on attending to a disabled relative, the employee does not have a viable claim under the association provision. Tyndall v. Nat’l Educ. Ctrs., Inc., 31 F.3d 209 (4th Cir. 1994). For example, if an employee is consistently leaving an hour early from work to bring her husband to doctors’ visits because of his disability, an employer may take disciplinary action in accordance with its policies.
Employers should also recognize that while an employee may not have a claim under the association provision of the ADA, there may be a cognizable claim in violation of the Family Medical Leave Act (FMLA). An employer with more than 50 employees must comply with the FMLA which provides up to 12 weeks of unpaid leave, taken at one time or intermittently, during any 12-month period to care for a spouse, child or parent with a serious medical condition. An employee utilizing FMLA leave must return to the same or equivalent job upon following an absence. To qualify for FMLA leave, provided the employer is covered by the Act, an employee must have worked at least 1,250 hours during the 12 months prior to the start of leave, work at a location where an employer has 50 or more employees within 75 miles and been employed by the employer for 12 months.
Accordingly, employers should include discrimination by association within ADA-compliant trainings and consider both the association provision and FMLA requirements when making determinative employment decisions regarding employee decisions, leave and the care for others.