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Is Time Off A Reasonable ADA Accommodation?

On Behalf of | Dec 23, 2019 | Disability Discrimination |

Is Time Off A Reasonable ADA Accommodation?

I Need A Disability Discrimination Attorney Answer: Can I sue for wrongful termination if my boss fired me for leaving work to take care of my disabled son? Can my employer discriminate against me because I have a disabled daughter? What protections do I have from disability discrimination? Is Time Off A Reasonable ADA Accommodation?

Personal story time, I had a cousin who was born with a very rare genetic disorder called Angelman syndrome. I say had because about seven years ago, at the age of 32 my cousin passed away because of complications from his condition. Angelman syndrome is extremely rare, affecting only one out of every 15,000 newborn children. The symptoms of Angelman syndrome include developmental delay, lack of speech, seizures, and walking and balance disorders. People who are diagnosed with Angelman syndrome require intense personalized care for their entire life. I remember watching my aunt and uncle struggle to care for my disabled cousin’s needs. They had to do everything for my cousin, from feeding him, to getting him dressed in the morning. I saw firsthand the strain it put on their family life, and of course their careers. Luckily my aunt and uncle’s employers were fairly understanding and allowed them to take time off whenever they needed to care for my cousin. So, please understand, that when our employment discrimination attorneys say that they get, we get. Most of the employment lawyers at The Spitz Law Firm have a personal connection to this kind of work. It is our mission.

Unfortunately, not all employers are as understanding as the ones my aunt and uncle worked for. However, discriminating against an employee, based on the disability of a close family member is a form of disability discrimination called associational discrimination, or disability discrimination by proxy, and it is illegal under the Americans with Disabilities Act (“ADA”). In order to succeed in a claim of associational discrimination, an employee must show; 1) that they were qualified for the job at the time of an adverse employment action; 2) that they were subjected to adverse employment action; 3) that they were known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision. The illegality of associational discrimination was recently reaffirmed in the Second Circuit Court of Appeal case, John Keller V. Fred A. Cook, Inc.

In May 2014, John Keller was blessed with the birth of his daughter. In order to support his growing family, Keller began working for Fred A. Cook, Inc. in November of 2014. Kelleher began his career as a laborer and an operator. During his time with Fred A. Cook, Kelleher was a hardworking employee, and all of his performance reviews were positive. In fact, in February 2015, Fred A. Cook recognized Kelleher’s hard work and promoted him to the position of CCTV Truck Operator. Unfortunately, also around this time, Kelleher’s daughter was diagnosed with Rett Syndrome. Rett Syndrome is a neurological disease that affects, among other things, a person’s ability to speak, walk, breathe, and eat. While Kelleher and his family knew that his daughter was suffering from some kind of disability, the condition was not fully diagnosed until 2016. Until then, Kelleher believed that his daughter was suffering from epilepsy.

At the beginning of March 2015, before Kelleher knew that his daughter was suffering from Rett Syndrome but while she was showing symptoms of a serious medical issue, Kelleher told one of his direct supervisors, Brian Cook, that his daughter had a serious medical condition. Kelleher also told Cook that he may occasionally have to rush home to help take care of his young daughter. As an initial note, if Fred A. Cook, Inc. was a large enough employer, this notification would be sufficient to put the employer on notice of a need for Family and Medical Leave Act (“FMLA”). At that point, the company would be obligated to inform the employee of his FMLA rights and provide FMLA documentation. Our employment rights attorneys have blogged about this before. (See Can My FMLA Leave Count Against Me At Work?; Can I Be Fired For Asking About FMLA?; Can My Boss Stop Me From Taking Medical Leave Under The FMLA?).

Is Time Off under FMLA A Reasonable ADA Accommodation?

Almost immediately after he told Cook about his daughter’s serious medical condition Kelleher noticed that the attitude of his supervisors and others at the company took a negative turn. Kelleher was ordered to work in “the shop” while coworkers in the same position as Kelleher handled other work at a higher pay rate. On Friday, March 27, 2015, Kelleher’s supervisors told him that he could not leave work immediately after his shift. Kelleher explained to his supervisors that he needed to leave in order to be home to care for his daughter. Kelleher’s supervisors ignored Kelleher’s request and told Kelleher that he had to remain on-site in case of an emergency, refusing to provide an accommodation. Also, during the March meeting, Kelleher asked to work 8-hour shifts for one week, instead of his normal 10-12-hour shifts. Kelleher explained that he needed this time to help take care of his daughter’s condition. In response, Kelleher’s supervisors refused to allow him to work the 8-hour shifts and told him that his “problems at home were not the company’s problems” Further, Kelleher was told that he would not receive a raise that year.

The day after Kelleher’s supervisors denied his requests for an accommodation to work a shorter shift and to be allowed to go home as soon as his shift ended, Kelleher’s daughter had a near-fatal seizure. After rushing his daughter to the hospital, Kelleher told Cook that he would be unable to work the following Monday. When Kelleher came to work on Tuesday, he discovered that his supervisors had demoted him. Instead of working as an Operator, where his responsibilities included running controls on trucks, Kelleher was now working as a laborer, where his chief responsibility involved shoveling sewer systems – talk about a crappy demotion. Still, needing to work to support his family Kelleher did not challenge the demotion. (Side note, a discriminatory or retaliatory demotion is illegal, and should be challenged!) After he was demoted to the lesser role of laborer Kelleher again requested 8-hour shifts so he could visit his daughter in the hospital. Again, his supervisors denied his requests. On April 16, 2015, just two and a half weeks after the day of work he missed because his daughter was in the hospital, Kelleher got to work 10-15 minutes late. Kelleher’s supervisors immediately told him to go home and that he would be called if his services were required. About a month later, in May 2015, Kelleher received a letter, dated April 2015, telling Kelleher that his employment had been terminated.

Kelleher did the right thing, and filed suit, claiming that Fred A. Cook violated the ADA. As our employment discrimination lawyers have blogged before, all employees are protected under the ADA nd Ohio’s R.C. § 4112.02(A) from being discriminated against by their employers on the basis of their actual or perceived disability. This includes protections from being terminated, being paid less, being demoted, being denied a promotion, and being treated differently than any other similarly situated non-disabled employee. (See My Job Is Discriminates Against Me Because I’m Disabled!; Top Disability Discrimination Lawyer: Is It Disability Discrimination If My Job Will Not Accommodate My Anti-Social Disorder?; and Is It Wrongful Termination To Fire Disabled Workers?). Additionally, the ADA requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.” (See How Do I Get A Disability Accommodation For My Job?; Can A Service Dog Be A Disability Accommodation At My Job?; and Does My Job Have To Accommodate My Paralysis?).

Is Time Off under FMLA A Reasonable ADA Accommodation?

In reversing the lower court’s dismissal of Kelleher’s case, the Second Circuit held:

Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination. Thus, in this case, Cook’s demand that Kelleher “leave his personal problems at home” after Kelleher requested one week of shortened workdays supports Kelleher’s claim that his later termination was motivated by associational discrimination.

The Second Circuit went on to hold:

The complaint also satisfies the fourth element of an associational discrimination claim: an inference that the disability of the plaintiff’s relative or associate was a determining factor in the employer’s adverse action. Kelleher was told that “his problems at home were not the company’s problems” at the March 27, 2015 meeting, and he was effectively demoted after he missed a day’s work to care for his daughter. These allegations provide all that is needed to raise a minimal inference that Kelleher’s employer thought that Kelleher’s daughter was a distraction, and concern over distraction was a “determining factor” in Kelleher’s termination.

While the Second Circuit Court of Appeals got this right, it is important to recognize that the trial court did not. This serves to highlight the importance of finding the best employment discrimination lawyer to help you fight your way through this process.

Having to raise a child with a disability is difficult enough without worrying about the effect it may have on your job. If you or your family member is disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.

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