Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Alayna Schroeder | The Daily Recorder | May 25, 2016

Legislatures and courts in recent years have required employers to recognize the familial responsibilities that affect workers’ ability to work. Expanded sick leave laws now permit employees to take paid time off to care for ill family members. Last year, San Francisco passed the “Family Friendly Workplace Ordinance,” requiring employers to consider flexible schedules that allow employees to meet family care obligations.

The California Court of Appeal recently issued an opinion that continues this trend in an unprecedented way. The court found that an employer’s duty to provide “reasonable accommodation” under the Fair Employment and Housing Act may extend to when a non-employee’s disability affects an employee’s ability to work.

Associational Disability Discrimination

The California Fair Employment and Housing Act prohibits not only discrimination against an employee with a disability, but also against an employee who is “associated” with a person with a disability. When an employee can prove that an employer took negative action because of the employee’s association with a disabled individual, that can establish a violation, even if the employee has no disability of his or her own.

There are few reported court decisions involving “associational disability.” Courts discuss three primary instances under which one is considered “associated” with a person with a disability. “Expense” association may occur when the employee’s spouse, child or other relative costs the employer money because, for example, the relative is covered by the company’s health plan. “Disability by association” could be when an employee’s close relative has a communicable disease or genetic condition that the employer fears may affect the employee. “Distraction” association might be when the employer believes the employee is distracted by the relative’s disability.

Extending Reasonable Accommodation to Non-Disabled Employees

One might not expect owing an employee without a disability a “reasonable accommodation.” The employee without a disability naturally does not need a change in the workplace facilities or removal of non-essential job functions to perform essential job duties.

However, the Court of Appeal in Castro-Ramirez v. Dependable Highway Express, Inc. decided that employees associated with individuals with disabilities are entitled to a reasonable accommodation, if possible, that enables them to perform their essential job functions. The court’s primary rationale is that the statute protects employees associated with individuals with disabilities on the same basis as it protects employees with disabilities themselves. The court reasoned that the “associated person’s” disability in fact is the employee’s disability for the purpose of the accommodation obligation.

Luis Castro-Ramirez, the plaintiff in the case, was a delivery driver for employer Dependable Highway. The plaintiff’s son required kidney dialysis. The plaintiff was the only family member trained to perform the dialysis tasks.

During the first few years of his employment, management allowed the plaintiff to work early shifts so he could be home in the evenings to provide the dialysis. But a new supervisor did not honor the schedule. He scheduled the plaintiff for later shifts, even when earlier shifts were available. He also told the plaintiff that a customer on an earlier route had asked that the plaintiff not do the customer’s deliveries, when the opposite was true.

The new supervisor eventually assigned Castro-Ramirez to a late shift that prevented him from helping his son with dialysis. The supervisor then terminated Castro-Ramirez’s employment for missing work to care for his son.

Reversing a judgment in favor of the employer, the court of appeal reasoned that Castro-Ramirez could have performed his essential job functions if Dependable had provided him with a reasonable accommodation – a schedule change to take care of his son. The court also found there was a factual issue as to whether the employer refused the schedule change because of Castro-Ramirez’s status as an individual associated with a disabled relative.

Under the federal Americans With Disabilities Act (ADA), it would be illegal to fire an employee because the employer objected to the relative’s disability for one of the reasons explained above (expense, etc.) However, the ADA does not require employers to provide employees with accommodations based on the associated person’s impairments. This decision therefore expands the FEHA beyond the ADA, because it imposes the additional accommodation requirement.

The Challenge for Employers

The court’s ruling in Castro-Ramirez potentially extends an employer’s existing leave obligations under family and medical leave laws like the California Family Rights Act (CFRA). For example, medical leave is a form of reasonable accommodation that employers must consider when an employee’s own disability might be accommodated by a finite period of leave for recuperation. The obligation to provide reasonable accommodation is independent of whether the employee is eligible for statutory medical leave.

Under Castro-Ramirez, employees would not be required to meet eligibility requirements to take leave to care for another person with a disability. Nor would the employee be limited to taking care of only certain, defined family members. The accommodation obligation does not include medical certification requirements and other statutory and regulatory matters included within the CFRA.

The decision also leaves open the possibility that employees will seek “accommodations” that are unnecessary to performance of their own jobs. And employers will have to decide whether to push back on employees’ claims that they are truly “associated” with someone requiring their care.

Will the Castro-Ramirez Case Remain Good Law?

Whether Castro-Ramirez will remain legally significant is not clear as of now. Only two out of three justices signed the majority opinion; one dissented. That, plus the novelty of the issue, means that the odds of Supreme Court review or depublication are higher than in other cases. Of course, it is too early to tell whether the employer will seek review of the decision.

Until there is a final disposition in this case, employers understandably may be reluctant to change current policies and practices. If the Supreme Court does not agree to hear the case, employers must carefully consider future requests for accommodation resulting from employees’ obligations to family members.