There are occasions when an employee has a need to take a leave from work to assist in the care of a disabled spouse. In certain circumstances where the employer subsequently terminates the employee, the employee may have a claim for “association discrimination” under the Americans with Disabilities Act.
In Pollere v. USIG Pennsylvania, Inc. (E.D. Pa.) (December 18, 2015, McHugh, J.), the employee’s wife began suffering from spinal meningitis which impaired her ability to walk, eat, sleep, and care for herself. As a result of her condition, the wife was hospitalized and the husband took time off from work pursuant to the Family and Medical Leave Act (“FMLA”) to care for his ailing wife. Upon his return to work the employee had a flare up of an unrelated illness, he was hospitalized for two days and when he returned to work, he received an “Employee Performance Notice” that stated that he had used up all of his medical leave and that he left work early on several days. Thereafter, the employee was only able to work sparingly for a period of time and he was readmitted to the hospital. During the absence, the employee and his wife kept the employer informed about his condition. Then the employee received a letter from the employer’s head of human resources, informing him that he needed to provide a doctor’s note explaining his situation and his job would be considered abandoned if he did not promptly respond by a certain date. The employee contacted HR by that date but did not provide a doctor’s note until three days later. In the interim the employee received a letter stating that his frequent absences were being treated as a resignation and his employment status was being changed to “inactive.”
The ADA prohibits employers from discriminating against “a qualified individual on the basis of a disability”, which is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. ADA protections are not limited to disabled employees and includes adverse employment actions against qualified individuals because of their association with a disabled individual. Thus, under the ADA, employers are prohibited from terminating the employment of an employee because of the known disability of an individual with whom the employee is known to have a relationship or association.
In Pollere, the court noted that discrimination by association provision draws a material distinction between firing an employee because of a relative’s disability and firing an employee because of the need to take time off to care for the relative. An employee is protected under the discrimination by association provision if the employee suffers an adverse employment action because of the known disability of an individual with whom the qualified individual has an association or the employer fears or assumes that the employee may have to miss work to care for a disabled relative. Thus, for an employee to prevail on a disability discrimination by association claim, an employee must prove that: (1) he was qualified at the time of the adverse employment action; (2) he was subject to an adverse employment action; (3) at the time of the adverse employment action, the employee was known by his employer to have a relative or an associate with a disability; and (4) 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 termination decision.
In Pollere, the court held that the employee could proceed with his claim under the discrimination by association provision of the ADA as there was no dispute that the employee was qualified for his job, that he was subject to an adverse employment action, that the employer knew of the employee’s wife’s disability, and at the early stage of the litigation the employee alleged facts that would permit an inference that his wife’s disability was a determinative factor in the employer’s termination decision as the employer referenced the employee’s use of 12 weeks of FMLA leave to care for his wife and the time the employee missed from work was a combination of time spent caring for his wife, and additional time because of his own medical challenges.
Disability claims often present complex issues. For more information on the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126511.htm.