Q2 ’24: Stop in the Name of Leave

The ADA’s Association Provision prevents discrimination based on an employee or applicant’s association with a disabled individual. Its purpose is to prevent employers from taking adverse action based upon unfounded stereotypes and assumptions about individuals who associate with people who have disabilities. The types of relationships and associations protected are family, business, social, or other relationships – examples include family members, roommates, significant other, friends, participants in the employee’s off-duty activities, co-workers at a secondary job, and recipients of employee’s volunteer work. So basically . . . anyone except total strangers.

Employers cannot exclude or deny equal jobs or benefits to, or otherwise discriminate against, an employee because of an association with a disabled person. Examples of association discrimination include an employer’s refusal to hire an applicant because of concerns a spouse’s disability will increase health insurance, employer telling an employee not to bring their disabled child to a holiday party (when other children are included), terminating an employee if learning the employee’s partner is HIV-positive, refusal to promote an employee because of fear the employee will suffer a genetic medical event, or refusal to allow an employee to take a week of unpaid leave to care for a parent, but allowing another employee to take a week to attend a child’s camp.

There is no ADA duty to accommodate based on association with a disabled person. For example, an employee is not entitled to a modified schedule as an accommodation to enable that employee to care for a spouse with a disability (but don’t forget about FMLA!). However, if you are operating in California, it’s important to consider the Fair Employment and Housing Act (FEHA) – their definition of disability includes someone who is associated with a person who has a physical or mental disability. Disability discrimination under FEHA includes failure to accommodate a person with a “disability.”

Additional detail on the Association Provision of the ADA can be found here.

Did You Know?

In today’s competitive landscape, staying ahead often means knowing where you stand. That’s why we’re thrilled to announce the Total Absence Management team has purchased DMEC’s interactive benchmarking dashboard called AbsenceExemplar. This one-of-a-kind benchmarking tool is designed to empower businesses of all sizes to measure their performance against industry standards.

The dashboards include responses from over 1,100 companies. The survey remains open, and DMEC continues to collect new responses from organizations across a range of industries, sizes, and regions.

The categories covered in the survey include questions around plans and benefits associated with:

• Short-Term Disability (STD)
• Long-Term Disability (LTD)
• Workers’ Compensation
• Family and Medical Leave Act (FMLA)
• Paid Parental Leave and Family Care Leave
• Time Off
• Attendance Policies

As a TAM client, we will provide reports to you at no additional cost. If you are interested, please contact your TPG account manager!

Dearest HR friends, you all have big brains and provide a tremendous amount of value to your respective organizations – but we, and our managers, are not medical professionals, which why we rely on said medical professionals to provide guidance on when our employees should or should not be at work. Let this recent case from the Equal Employment Opportunity Commission (EEOC) demonstrate why.

In this case, the owners of a hotel in Omaha, NE, agreed to pay $100,000 to a former general manager and furnish other relief to settle a disability discrimination lawsuit.

According to the lawsuit, the general manager told his direct supervisor he needed time to go to the hospital to treat his depression. Two days later – the same day the general manager left the hospital –  his supervisor told him he was fired because the company feared he might hurt others. This is not what I would call “airtight logic.” The EEOC alleged the manager was terminated based on fears and stereotypes regarding his disability, depression.

This conduct violates the Americans with Disabilities Act (ADA), which we all know prohibits discrimination based on disability. Further, the company “failed to conduct an individualized assessment of the general manager’s ability to perform the essential functions of his job with or without reasonable accommodation at the time of discharge.”

In addition to the settlement, the hospitality group is now under a consent decree, which prohibits terminating employees on the basis of disability (pro tip: don’t ever terminate on the basis of disability), requires the adoption of policies and procedures to ensure compliance with the ADA, ensures all employees receive copies of and annual training on those ADA policies, and requires additional recurring ADA training for all owners, general managers, and human resources personnel. The group will also regularly report.

We’re not saying employers should ignore behavior that could reasonably jeopardize workplace safety. But, there’s a right way to go about this type of assessment that typically includes a customized fitness-for-duty assessment, which objectively outlines observed behavior that your employee will need to take to their medical provider for verification its safe for the employee to be at work.

According to the EEOC’s technical assistance manual, “an employer may require, as a qualification standard, that an individual not pose a ‘direct threat’ to the health or safety of the individual or others, if this standard is applied to all applicants for a particular job.” The ADA requirements for establishing a direct threat are “specific and stringent.”

The employer must be prepared to show:

• significant risk of substantial harm;
• the specific risk must be identified;
• it must be a current risk, not one that is speculative or remote;
• the assessment of risk must be based on objective medical or other factual evidence regarding a particular individual; and
• even if a genuine significant risk of substantial harm exists, the employer must consider whether the risk can be eliminated or reduced below the level of a “direct threat” by reasonable accommodation.

Exhibit A

Occasionally, we encounter scenarios where despite our best efforts, our employees are unable to successfully perform the essential functions of their role. This case highlights the right way to go about these situations

The plaintiff worked as an account manager for an insurance agency for over 15 years. The plaintiff successfully performed her duties without difficulty for most of her tenure.

In 2018, her work began to suffer. Coworkers and clients complained about her “incompetent and untimely service.” Her mistakes caused the defendant to lose two clients, another asked the defendant for reassignment to a new manager, and a fourth received a threat of legal action because of the plaintiff’s mistake.

The following year, the plaintiff disclosed that she had early-onset Alzheimer’s disease. However, she never asked for a reasonable accommodation, even though her company made repeated inquiries from about how they could help her. Correct move #1 – repetitive requests of “How can I help?” Even though the employee did not provide any suggestions, the employee’s direct supervisor helped by suggesting she take notes at meetings to ensure she followed instructions, and over several months, he reduced her workload.

Unfortunately, performance continued to deteriorate. Eventually, the employee was placed on a performance improvement plan. When her performance did not improve, she was ultimately terminated.

The plaintiff then sued for disability discrimination and failure to accommodate. Unfortunately, during the litigation, the plaintiff’s condition worsened to the point that she could not continue with her deposition, and she would not be able to testify at trial.

Nonetheless, the case continued, and the defendant was granted summary judgment.

To prevail on a disability discrimination claim, a disabled plaintiff needs to show the essential duties of the job can performed with or without accommodation; otherwise, the individual is unqualified. Here, the evidence showed the plaintiff could no longer perform several tasks outlined as essential functions in her job description.

A qualified individual is a person who meets legitimate skill, experience, education, or other requirements of an employment position, and who can perform the essential functions of the position with or without reasonable accommodation.

The court noted, “It was not up to the defendant’s employer to divine what accommodations were needed or would be effective.” Still, when the defendant tried to help the plaintiff, she remained unable to perform the essential job functions.

Ultimately, if an employee is unable to perform the essential functions of their current role, reassignment or “an accommodation of last resort” should be explored. This is an attempt to provide opportunity for employees to continue in employment if a position that they qualify for with or without reasonable accommodations can be found. The reassignment process begins after the search for reasonable accommodation in the current position is exhausted.

Exhibit B

You want another example of how to manage employees who cannot perform their essential functions? Who doesn’t! Your wish is my command. This recent decision involved an employee of Coca-Cola with a rare form of Tourette Syndrome that caused him to involuntarily utter obscenities and racial slurs. In addition to this employee’s interaction with co-workers, the job also required excellent customer service skills while making deliveries and interacting with customers.

Throughout his employment, several customers complained about the employee’s offensive language while he serviced their stores. His service did not result in “Have a Coke and a Smile,” Coca-Cola’s slogan from 1979.

Nonetheless, Coca-Cola adjusted the employee’s route so that he would not service stores alone. He also received a leave of absence, after which he was allowed to work as a driver helper to limit customer interactions further.

However, these accommodations did not eliminate the problem.

Coca-Cola then found out the employee’s tics were “once again out of control, and he was repeating the `N-word’ over and over through his daily route and in the presence of customers and consumers.”

At this point, the employee was offered two options: take another leave of absence or transfer to a vacant, overnight warehouse position with no customer interaction. The employee accepted the warehouse position at a reduced pay rate and eventually resigned.

Then, he sued for disability discrimination.

As we reviewed above, the plaintiff must establish they are “otherwise qualified” for the position, meaning they can perform the essential functions of their job with or without a reasonable accommodation.

Here, the delivery merchandiser role required not just interacting with customers but excellent customer service. However, the plaintiff’s disability caused him to vocalize racist and profane words in front of customers who complained to the defendant about it. Clearly, the plaintiff could not perform the job without accommodations.

Once again, Coca-Cola did a lot of things right, just as the employer above. They adjusted the employee’s route, provided a leave of absence, and otherwise tried to limit the plaintiff’s customer interactions, none of which worked. Eventually, Coca-Cola offered the accommodation of last resort – an alternative position.

While the employee viewed the warehouse position as a demotion, employers may reassign an employee to a lower grade/pay position if the employee cannot be accommodated in the current position and a comparable position is unavailable.

For these reasons, the defendant’s accommodation was reasonable, and the court affirmed the dismissal of the failure-to-accommodate claim.