May 10, 2021

ADA’s Association Discrimination: A COVID-19 Reminder

I have heard this scenario from more than one employer over the last several months. An employee refuses to return to work. The employee wants to continue working from home. Why? The employee says it is because an immediate family member with whom the employee lives has an underlying health condition. The employee is afraid returning to work might result in the employee contracting COVID-19, putting the family member at risk.

What bell and whistle should be going off?  The Americans with Disabilities Act’s (ADA) association provision.  You just heard that your employee associates with a person with a disability.  That is a protected status under the ADA.

What now?  This might not require the ADA’s usual interactive dialogue. The ADA does not require an employer to provide a reasonable accommodation based on association.  It does prohibit you from discriminating based on the association status.  In this case, a key question would be if you are letting any other employees work from home. If so, why can you not let this employee do the same?  There could be many valid reasons. Just be sure they are job related and consistent with business necessity.

Take comfort. If you have faced this issue, you are not alone. In one recent case, an employee was fired when she failed to disclose that she was in close contact with her brother who had contracted COVID-19.  She sued alleging she was discriminated against based on her association with her brother who had a disability.  The ending to that story? The court found in favor of the employer. The court found the brother did not, in fact, have a disability as defined under the ADA.

For more information and updates on ADA basics, check out FiveL Company’s May webcast on “Managing Disability & Leave: Part I – ADA.”