We often get questions submitted to us in the Ask Poms section of Poms Connects. Recently a client came to us with the following question.
Question: Does the ADA require accommodating an employee to care for a relative with a disability?
Answer: It depends. Of course, there are often not easy answers when it comes to the ADA, but typically the answer would be no.
Explain that to me.
O.K. let’s say you hire a full-time employee, Bob Smith. He works the typical 8 hours a day, 40 hours week type position. A few months go by and Bob requests a part-time work schedule, so he can spend extra time caring for his daughter who is suffering from a disability. Because Bob is a new employee (he has worked for the company for less than12 months), he is not FMLA-eligible. The Americans with Disabilities Act requires you as an employer to accommodate an employee with a disability where doing so will allow the individual to perform the essential functions of the job without creating an undue hardship.
So, you ask, do I have to accommodate Mr. Smith? The short answer is no.
Should you accommodate him? Well, that might be more complicated, as that gets into moral or ethical obligations you as an employer might have to your employees. I would argue that you should accommodate him, if at all possible, for many reasons. If you work with your employees in times of hardship and need, you tend to build up loyalty to your company in both the employee you are helping, and the employees who are observing. Plus, sometimes the costs of replacing a highly skilled employee (hiring, training, retention) are higher than if you were to work with Bob on a part-time schedule. Lastly, imagine trying to explain to your staff that you had to let Bob go because he had a disabled daughter and you weren’t willing to let him work part-time to take care of her. That is one conversation I wouldn’t want to have!
But legally? No, you do not have to accommodate him.
Keep in mind, however:
- You cannot discriminate against Bob Smith because of his association with someone who has a disability, i.e. his daughter. In other words, do not fire Bob because you are concerned he won’t be able to perform his job because of his caretaker responsibilities. In legalize that is called associational discrimination.
- If Bob had been FMLA eligible, then you would be obligated by federal law to go through that process with him.
- There may be specific state or local law that does create a duty to accommodate.
In addition, there are a million caveats that could complicate this seemingly-simple scenario. It is always best to consult with a lawyer or an HR expert when dealing with an ADA or other type of tricky employment situation.
Your Poms Risk Services Team is available to provide answers to day-to-day questions in the areas of employment, human resources, employee benefits, health & safety, organizational development and more, so that you can focus on running your business. In addition, we can assist organizations with training, document preparation and compliance assessments on a per project basis. For more information, please contact us at (505) 797-1354 or email us.
“Plaintiffs’ lawyers say this is the most important thing that ordinary people do not understand about the law,” she said. “You do not have the right to a fair workplace. You have the right to a nondiscriminatory workplace.” –Laura Beth Nielsen, PhD