KBS Reference Desk: ADA Accommodations Based on Family Member’s Disability

Q:        Our district is soon reopening for in-person, classroom instruction. One of our teachers has submitted an accommodation request to work from home because her husband has Chronic Obstructive Pulmonary Disease (“COPD”) and would be considered a high-risk patient if he contracted COVID-19. Our teacher is worried she might contract COVID-19 at school and transmit the infection to her husband. Do we have to provide the teacher with her requested accommodation and allow her to work remotely?

A:        No. Employers are required to make reasonable accommodations for known physical or mental limitations of otherwise qualified individuals with disabilities. Employers, however, are not required to provide an employee who is not disabled with reasonable accommodations based on the disability-related needs of a family member.

            The Americans with Disabilities Act (“ADA”) provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). “[N]ot making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability” is a form of discrimination prohibited under the ADA. 42 U.S.C. § 12112(b)(5)(A) (alteration and emphasis added).

Of particular note in the ADA’s prohibition of disability discrimination and the resulting obligation to provide reasonable accommodations discussed above is that only an employee who is otherwise a qualified individual with a disability fits within the disability-based protected class under the ADA. The ADA defines a person with a disability as an individual who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a history or record of such an impairment; or (3) is perceived by others as having such an impairment. 42 U.S.C. § 12102(1). And only “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires,” constitutes a “qualified individual with a disability.” 42 U.S.C. § 12111(8).

            The ADA’s proscription and related definitions when read together expressly provide that an employee who is not herself a “qualified individual with a disability” has no right under the ADA to a reasonable workplace accommodation. The Equal Employment Opportunity Commission (“EEOC”) recently affirmed this longstanding principle in its guidance titled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Therein, the EEOC explained that “an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.” The EEOC’s guidance on this topic is available online at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

            Please be advised that while the ADA does not require your district to accommodate non-disabled employees, other laws and policies may come into play. The teacher in this instance, for example, is not eligible for reasonable workplace accommodations under the ADA; however, she may qualify for a leave of absence to care for a seriously ill family member under the Family and Medical Leave Act (“FMLA”) or be permitted to use local leave in accordance with your district’s Board Policy DEC (Local).

A determination whether an employee qualifies for any available federal, state, or local leave should be made pursuant to your district’s leave policies and procedures. Please contact your local school attorney if you seek additional information or have specific questions.

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