Favorite (Fictional) Cases Revisited: Reasonable Accommodation For A Non-Disabled Employee?

Labor Day weekend is upon us. While the holiday owes its creation to organized labor, most of us see it as a day off of school or work.

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It is the last hurrah of summer. Some will spend it barbecuing with family. Others will hit one of the last music festivals or food jamborees before Fall. Most will tune in to watch one or more of the excellent slate of games on the first college football “Saturday” of the season (actually today through Monday). In the big one Notre Dame is a 3½ point favorite over Texas. (Go Irish.)

The start of the football season brings injuries and injuries remind The Bullard Edge of a favorite fictional case involving Tom, Deb, and Deb’s service dog Scotty. In the scenario, Deb has epilepsy and Scotty is a trained seizure dog (warns her of seizures, protects her from falls). After Scotty is injured, Tom requests family leave to take care of Scotty so that Scotty can get back to taking care of Deb (instead of time off to care for a family member, Tom wanted time off to care for a family member’s caregiver). After a little fun, we concluded that Tom had no FMLA leave entitlement in that scenario.

A recent case decision out of California has inspired us to revamp this scenario slightly. We are going to ditch Scotty, modify Deb’s disability and convert the family leave request into a reasonable accommodation request. The question becomes whether non-disabled Tom is entitled to reasonable accommodation in the form of a modified schedule. After setting the factual table, we will look at this question under the ADA, Oregon law, and California law. Let the tale begin.

The Fictional Facts
Mid-Town Hardware hired Tom several years ago as its business manager. In that role, Tom manages inventory, tends to the annual budget, and handles customer contracts and disputes. It is a busy desk and Tom is the only employee (other than the general manager) with the skills to handle all of these duties.

During his off-duty hours, Tom spends a significant amount of time caring for his spouse, Deb. For the past two years Deb has been dealing with a significant health condition that requires outpatient medical treatment every afternoon. In the past, Deb drove herself to these appointments; however, her condition recently worsened and she no longer drives. This responsibility is now on Tom.

Tom, who has no significant ongoing health issues, broke his knee cap at the beginning of the year and missed a substantial amount of work. All of that time was protected family leave under FMLA and OFLA and he had income continuation through the company’s short term disability plan. Between the knee cap and time off to care for Deb, Tom currently has no family leave remaining.

Before approaching the company, Tom carefully considered his job and family needs. His regular work day is 9:00 AM to 6:00 PM. However, in light of Deb’s situation, Tom would need to be available at 3:00 PM every day to drive her to treatment. Tom believed that if he adjusted his start time to 6:00 AM he would be able to continue to do his job and drive Deb to treatment. In other words, in light of his association with a person with a disability (his spouse, Deb), Tom wanted the company to accommodate him by modifying his job hours; he was not seeking family leave.

Tom made the proposal to Mid-Town Hardware’s general manager and it was rejected without much discussion. The GM told Tom that the company wanted him in the workplace during his regular work hours. The company wanted him there to be available to customers and to be available to discuss inventory needs with other employees.

Tom ignored the general manager’s denial and began reporting for work at 6:00 AM. After the company terminated his employment, he filed a disability discrimination claim. Tom alleged that the company had unlawfully refused to provide reasonable accommodation needed to allow him to care for a disabled individual with whom he was associated. He also alleged that the company had unlawfully refused to engage in the interactive process regarding his accommodation request.

Pre-Analysis Factors
Let’s refresh our recollection on two ADA basics, both found at 29 CFR §1630.2.

— Disability: An individual has a disability where s/he (1) has a physical or mental impairment that substantially limits one or more of the major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment.

— Reasonable Accommodation: A reasonable accommodation is a modification or adjustment (1) to a job application process that allows for equal consideration, (2) to the work environment or manner of performance to enable performance of the essential functions of a job, and/or (3) to allow an employee with a disability to “enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”

Let’s also consider Tom. He is an extremely sympathetic claimant; he is almost too good to be true. Every year during his employment Tom received a top rating in his annual reviews and a deserved merit increase in pay. In addition, Tom’s accommodation request was 100% sincere. There is nothing flimsy about it. He is devoted to Deb, who is unquestionably disabled, and the accommodation he requested was feasible, would allow him to perform the essential functions of the business manager position, and would not have created any obvious hardship for the company.

ADA Analysis of the Merits
With all of that in mind, let’s take a look at the merits of Tom’s claim under the ADA. The short answer is that his claim has no merit. Tom is an excellent employee and an admirable human being. However, under the ADA Tom’s discrimination claim has no merit because it falls between the “association” and the “reasonable accommodation” provisions found in 42 USC §12112.

Per 42 USC §12112(a), it is unlawful to discriminate against a qualified individual on the basis of disability. Subsection (b) describes what it means to unlawfully discriminate for purposes of the ADA. We want to look at subsections (b)(4) and (b)(5)(a).

— Associational Discrimination described in subsection (b)(4) means “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association”.

— Reasonable Accommodation Discrimination described in subsection (b)(5)(a) is better known and means “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity”.

Mid-Town Hardware’s conduct does not fall into either category. It did not take any action against Tom because of his association with Deb. Moreover, given that Tom is not himself disabled, he lacks a claim for failure to reasonably accommodate.

EEOC addressed this directly in item #4 of its publication titled Questions and Answers About the Association Provision of the Americans with Disabilities.

4. Does the ADA require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability?

No. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.

EEOC provides many specific examples of the types of conduct prohibited by the association provision. None of those examples gives any life to Tom’s ADA claim.

Oregon Law Analysis of the Merits
Unfortunately for Tom, Oregon law is identical to the ADA for purposes of this scenario. Oregon’s definitions for disability and reasonable accommodation match the ADA’s definitions. Moreover, Oregon law also prohibits discrimination against a qualified individual on the basis of disability.

Further, Tom’s discrimination claim once again fails because it does not fit within the “association” or “reasonable accommodation” provisions found in ORS 659A.112. Those provisions match the parallel ADA provisions leaving Tom out of luck.

California Law Analysis of the Merits
If Tom and Deb lived in California, however, the result might be different. Earlier this week, the Court of Appeal issued a ruling in a similar case. The appellate court held (by a 2 to 1 margin) that an employer violated California’s Fair Employment and Housing Act by terminating an employee who had requested a different schedule as an accommodation that would allow him to care for his disabled son. The dissenting judge took issue with this holding.

The facts in Castro-Ramirez v. Dependable Highway Express Inc. (August 29, 2016) are straightforward. Mr. Castro-Ramirez’s “son requires daily dialysis, and according to the evidence, plaintiff must be the one to administer the dialysis.” For several years the employer scheduled Mr. Castro-Ramirez earlier in the day; however, this changed when a new supervisor took over. The new supervisor did not believe he needed to provide this scheduling accommodation and terminated Mr. Castro-Ramirez when he refused to work later hours.

Mr. Castro-Ramirez sued under the FEHA alleging “associational disability discrimination” in the form of failure to accommodate and termination because of disability. After the trial court granted summary judgment, Mr. Castro-Ramirez successfully appealed the termination decision. (He did not appeal the decision on the failure to accommodate claim.)

The appellate court explained that California defines “disability” broadly to include a person who is associated with someone having a physical or mental disability or medical condition. See Cal. Labor Code §12926(o). Consequently, under California law this results in three conclusions.

— First, Mr. Castro-Ramirez was an individual with a disability by virtue of his association with his son.

— Second, as an individual with a disability he would be within the FEHA’s protection.

— Third, as the court states, a “jury could reasonably find from the evidence that plaintiff’s association with his disabled son was a substantial motivating factor in [employer’s] decision to terminate him, and, furthermore, that [employer’s] stated reason for termination was a pretext.”

The majority opinion expressly noted that the appellate court was “not tasked to decide whether either FEHA or the ADA creates a failure to accommodate cause of action based on associational disability.” Nevertheless, the dissent claimed that “while the majority purports not to decide whether FEHA requires an employer to reasonably accommodate employees who associate with a disabled person, in my view the majority in effect has done just that.”

Applying the California outcome to our Tom and Deb scenario, it is possible that Tom would be able to successfully claim that Mid-Town Hardware terminated him because of his association with Deb.

That is enough law for now. Happy Labor Day weekend to all.

The Bullard Edge