My employee has asked for a different schedule due to his child’s disability. He needs to take the child to regular medical treatment. Do I have to accommodate this request?
Typically, accommodations in the workplace are for the employee, but recent case law has ruled in favor of employees who need an accommodation under the Americans with Disabilities Act (ADA) due to a family member with a disability.
This is called “association discrimination,” defined by the Equal Employment Opportunity Commission (EEOC) as follows:
“The ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association.”
Changes in schedules frequently are the accommodation requested, and need to be considered when such a request is made. Additionally, the employer’s perception that an employee is distracted at work because of a disabled child is indefensible, and can be the basis of a claim.
Other examples of association discrimination noted by the EEOC in its questions and answers are:
• A restaurant owner discovers that the chef’s boyfriend is HIV-positive and takes negative action against the employee accordingly.
• A company denying a promotion to an employee whose sister and mother had breast cancer—and the company’s perception that the employee would eventually get it and not be able to perform the duties of the promotion.
Does the employer have to make the accommodation as noted above? As in most ADA issues, “maybe.”
But an employer does have an obligation to enter into the interactive process and discuss ways to accommodate its employees’ requests. Several factors are considered, but the ADA considers these situations case by case, and employers should use caution dealing with this growing area of the law.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.