BUSINESS LAW: Employee's relationship with family members

In most of our articles, we have examined discrimination directed at an employee based on who or what he or she is: race, age, disabled, national origin, etc.

However, those same statutes can protect or give rights to employees who have relationships with family members who fall into these same categories. The Americans With Disabilities Act and the Family Medical and Leave Act are two of these statutes.

The ADA prohibits discrimination based on a third person's disability. This is called "associational discrimination." The theory is rooted in the perception of distraction: the employee is believed or anticipated to be inattentive at work because he or she is preoccupied with another person's disability. The perception continues by assuming that the distraction prevents the employee form doing his/her job.

For example, in a recent case, an employer violated the ADA when it terminated an employee because it believed the employee was distracted at work because of his wife's disability. In these circumstances, the ADA doesn't require reasonable accommodations for the employee – like time off to care for the disabled family member. However, the ADA prohibits adverse actions based upon the employee's relationship with the disabled person.

The FMLA also addresses – and protects – employees who care for a seriously ill family member. However, in order to be entitled to FMLA leave, the employee must be in physical proximity with the person who receives the care.

For example, in a recent case, a father who left his seriously injured daughter in the care of his wife in another city while he readied their home for her return, did not qualify for FMLA leave "to care for a seriously ill family member." His activities were not in physical proximity to the actual care given to his daughter.

Increasingly, employees are asked to care for ill or disabled family members, whether parents or children. Employers are wise to remember that the relationship with these family members may be protected.    By James Jorgensen

 

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