Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
It’s nearly two years later, and somehow COVID-19 issues continue to pop up. I am a high school principal, and I recently received an email from a teacher who is nearing the end of his twelve weeks of FMLA leave. The teacher was granted FMLA leave because his young daughter has “long COVID,” and he has had to care for her. In his email, the teacher explained that his daughter continues to experience brain fog, headaches, dizziness, intestinal pain, and shortness of breath since contracting COVID-19 several months ago. The teacher is now asking for leave under the ADA because his daughter is being provided homebound instruction and there is no other family member available who can stay home with her.
I forwarded the teacher’s email along to our human resources director, who denied the teacher’s ADA request. Nonetheless, the teacher failed to return to work after his FMLA leave expired, at which point we determined that he had abandoned his job and terminated his employment. Frankly, we were saddened to see this otherwise highly qualified teacher go. However, now the teacher has filed a disability discrimination claim, alleging that the district failed to provide him reasonable accommodation in violation of the ADA, and we are concerned about legal liability. Should the district have granted this teacher’s request for additional leave?
To Accommodate or Not to Accommodate – That is the Question!
While your question concerns COVID-19, Legal Mailbag is admittedly relieved this is not a novel one.
The first issue here is whether the teacher may bring a discrimination claim against the district. The answer is yes. Such claims, called associational discrimination claims, are covered by the Americans with Disabilities Act (ADA). The ADA prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” An employee making an associational discrimination claim must show that (1) he or she was qualified for the job at the time of the adverse employment action, (2) he or she was subjected to adverse employment action, (3) he or she was known at the time of the adverse action to have a relative or associate with a disability, and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.
The U.S. Department of Health and Human Services has explained that long COVID can be, but is not always, a disability under the ADA. A person with long COVID has a disability within the meaning of the ADA if the person’s condition or symptoms constitutes a physical or mental impairment that “substantially limits” one or more “major life activities.” Legal Mailbag notes that the daughter’s major life activities, such as reading and thinking, appear to have been substantially limited by long COVID. Moreover, the term “disability” also contemplates a condition’s impact on the operation of an organ, such as the daughter’s digestive system and lungs. In sum, the facts indicate that the daughter does indeed have a disability under the ADA that could support an associational discrimination claim.
The second issue, however, is whether such a complaint has merit. Based on the information you shared, Legal Mailbag predicts that the complaint here is a loser. Even assuming the daughter has a disability, the district was permitted to deny the teacher’s request because the ADA does not require the district to provide a reasonable accommodation to a nondisabled relative or associate of a disabled person. See Kelleher v. Fred A. Cook, Inc., 939 F.3d 465 (2d Cir. 2019).
Liability for associational discrimination would have to be based on evidence that the district’s adverse action (terminating the teacher’s employment) was motivated by concern over the daughter’s disability. For example, if the district told the teacher to “leave your personal problems at home,” or expressed fear that the teacher would be inattentive at work due to his daughter’s long COVID, there might be evidence that the teacher’s termination was motivated by associational discrimination.
Based on what you have shared with Legal Mailbag, however, one can fairly conclude that the district terminated the teacher’s employment for failing to return to work after the expiration of his FMLA leave, rather than having anything to do with his daughter’s long COVID. Therefore, absent some other fact unknown to Legal Mailbag that might support an inference of associational discrimination, the teacher’s ADA discrimination claim will fail. Whether and when to grant a teacher leave to care for a disabled family member beyond that required by the FMLA could be governed by a collective bargaining agreement, and responding to such a request is otherwise a business judgment for the district. However, granting such leave as an accommodation is not required by the ADA.