In a recent 7th Circuit Court of Appeals case, the court found that an employer did not violate the Americans with Disabilities Act (ADA) by firing an employee who refused to work weekends so she could care for her disabled daughter. The court also held that the ADA didn't require the employer to offer any reasonable accommodation for the employee's care-giving needs. This ruling is helpful in shedding light on employer obligations under the ADA's lesser-known prohibition of association discrimination.

 

Under the ADA, an employer can't discriminate against a qualified applicant or employee based on the applicant or employee's association or relationship with a disabled person. Family relationships are the most common, although not the only, form of association this provision protects. For example, if an employer learns during an interview that an applicant's spouse has a disability, and the employer does not hire the individual (even though he is qualified) because the employer assumes the individual will miss work frequently to care for his spouse, or because the employer wants to avoid the expense of providing health care to the spouse, the employer's refusal to hire the applicant is association discrimination. However, assume the employer hires the individual. If the employee violates the employer's neutral attendance or tardiness policy, the employer may fire the individual, even though the reason for the absences and tardiness is to care for his spouse. The employer does not have to accommodate the non-disabled employee.

 

In the present case, the employer asked the employee to work some weekends to relieve a coworker, and the employee refused because she spent weekends caring for her disabled daughter. The court held that the employer did not discriminate against the employee when it fired her for unsatisfactory job performance - her unwillingness to work weekends. Further, the employer did not have to accommodate the employee's scheduling preferences since the ADA does not require employers to accommodate the schedule of an employee with a disabled relative.

 

While this case doesn't apply to employers in the 9th Circuit (which covers Oregon and Washington), courts in the 9th Circuit may reach a similar conclusion. However, employers should be aware that the number of association discrimination cases are growing and EEOC guidance suggests this may be a developing source of exposure for employers. Employers are encouraged to develop and maintain policies and practices that focus on an individual's ability to perform their job. In dealing with caregiver-employees, employers must also be careful to consider not only the ADA but federal and state leave laws which entitle eligible employees to take leave to care for certain family members with serious health conditions.

 

If you have disability or leave questions, or need help drafting or updating a policy, UEA members have unlimited access to our telephone and email helplines - we're here to help!  

Employers Pay Millions in Distracted Driving Cases      

 

Employers should impose and enforce limits or bans on employees using electronic devices while driving. Employees distracted by texting or talking on a mobile device have caused accidents resulting in deaths, injuries and multi-million dollar verdicts and settlements against employers: 

• A Texas jury awarded $22 million in a case involving a Coca-Cola employee that ran a red light and broadsided an oncoming car - she was operating her cell phone using a hands-free device in accordance with her company's policy, but was distracted by the content of the call. One of the studies cited at trial indicated that cell phone use of any sort (hand-held or hands-free) steals more than one-third of a driver's attention.
• A Missouri jury issued a $24.7 million verdict against an employer following a crash that killed three people and injured 15.  The driver of a tractor-trailer was checking his phone for text messages when his truck ran into 10 vehicles that had stopped in traffic.
• A $21.6 million verdict was awarded for a fatal crash in Ohio involving a driver who rear-ended another vehicle on a freeway in a company car while using a cell phone.

The U.S. Occupational Safety and Health Administration (OSHA) has a distracted driving initiative that may impose strict liability for employers for injuries resulting from crashes caused by employees' distracted driving.

 

Don't get stuck with a verdict or settlement against your company for an employee's distracted driving!  Employers should have a policy addressing employee use of electronic devices while driving on company business that includes the following:

• Employees are expected to observe all relevant laws requiring hands-free devices or prohibiting text messaging while driving.
• Employees are expected to stop driving before conducting business electronically or are expected to use hands-free devices while driving. Cautious employers could ban the use of hands-free devices altogether.
• Employees reimbursed for business calls on their cell phones should certify that their phone has not been used in violation of company policy.
• Company-owned electronic devices may be monitored to ensure compliance with company policy.
• Employees who violate the policy will be subject to disciplinary action.

Please contact us if you need assistance drafting or updating a policy!