by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
January 29, 2021
Associational discrimination? What’s that, you ask? It may soon be critical for California employers to understand this concept.
Little-known and even less understood provisions of the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), protect employees who have family members (or other close individuals) with disabilities. The association provision of both laws prohibits employment discrimination against a person because of his or her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the employee has a relationship or association. For example, an employer cannot terminate an employee because her husband or best friend or roommate or . . . has been diagnosed with cancer and the employer is concerned the employee will miss time from work to care for that person. However, the ADA does not require employers to provide accommodations to employees based on their association with a disabled person.
Enter California. Our readers may recall that in November 2016 a California court interpreted FEHA to include a requirement that employers engage in interactive discussions and consider reasonable accommodations for employees who do not themselves have a disability, but are seeking accommodation(s) so they can assist a disabled person with whom they are “associated”. In Castro Ramirez v. Dependable Highway Express, Inc., the California Court of Appeals initially ruled that an employee with a severely disabled son who required home dialysis on a scheduled basis was entitled to an accommodation under FEHA to meet his son’s dialysis needs. The ruling was based on the language of FEHA which defines a disability to include an employee who is associated with a person who has, or is perceived to have, a disability. Examples include, as in this case, time off from work to provide required medical care or transportation to appointments. However, the court opinion did not actually become law. The plaintiff abandoned this claim on appeal and instead, focused on what was a slam dunk associational discrimination claim (he definitely was fired because of his need for time off to assist with his son’s daily dialysis at home).
Four years later, the concepts underpinning the Castro decision are back. The California Department of Fair Housing and Employment (DFEH) has indicated in a recent request for public comment that it is likely to introduce regulations to expand employers’ responsibilities to their California employees to require employers to provide accommodations to employees based on their association with an individual with a disability. To read the DFEH’s request for public comment, click here.
The deadline to provide public comment is February 1, 2021, and Matrix has done so. In particular, in our comments, we have urged the DFEH to narrowly define the individuals for whom the employer’s duty to engage in interactive discussions and provide reasonable accommodation(s) to those who meet the definition of “family member” under the California Family Rights Act (“CFRA”). That is quite an extensive list that includes an employee’s spouse, domestic partner, parent, child, and, as of January 1, 2021, grandparents, grandchildren, and siblings. Still, this would be more limited than the undefined associations covered by the ADA and would provide employers concrete guidance.
Matrix has also focused its comments on the practicalities of what the DFEH is proposing; namely, what does an interactive process under these circumstances look like? Who is required to participate? Can the employer obtain certification of the “association” or family relationship?
And what about medical information? Under the ADA, if an employee’s need for accommodation is not known or obvious, an employer is entitled to information supporting he or she has a qualifying “disability,” how that disability impacts performance of essential job functions and what the employee needs by way of accommodation(s) to assist her in doing so. In its comments, Matrix has proposed similar suggestions for medical support employers could request for associational accommodation requests, or that the DFEH create a safe harbor form, as it has for California Pregnancy Disability Leave and CFRA.
Moreover, the ADA allows an employer to seek additional medical, including an independent medical exam with a provider of its choosing under certain circumstances; similarly, CFRA provides for an employer to obtain a 2nd and/or 3rd opinion. Matrix has asked the DFEH to consider allowing employers to do that as well for these “associational” accommodation requests if the medical information received about the disabled individual’s condition and care needs is of questionable validity.We have no doubt that there are many in the employment community who are providing comments or input on these proposed changes to FEHA which, when they become law, will be onerous to employers of California personnel. Fear not, dear readers! Matrix Radar is following these developments closely and when the regulations pass, we will be at the ready to assist our ADA clients in complying with those new obligations.