It is hopefully obvious to most employers that if a job candidate or employee[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1] discloses a disability and requests accommodation, an employer with five or more employees must begin the interactive process to attempt to accommodate the disability. What has been less clear, however, is how employers are to react when an employee discloses the disability of someone associated with them, such as a spouse, and requests an accommodation to assist that individual. Employers may be thinking “I hired the employee, not his/her spouse, thus I owe no duty to accommodate the spouse’s disability.” The California Second District Court of Appeal, covering various counties including Santa Barbara, recently addressed this issue in Luis Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 246 Cal.App.4th 180 (“Ramirez”). The Court ruled that employers owe a duty to engage in the interactive process and reasonably accommodate an employee associated with a disabled person who needs the employee’s assistance. This case will likely be appealed to the California Supreme Court and rehearing has been granted as to a narrow issue.[2] In the meantime, however, all employers must pay heed to the Court’s ruling.
The facts of Ramirez are, like many cases that make it all the way to the appellate court, rather egregious. When Dependable Highway Express (“DHE”) hired Luis Castro-Ramirez (“plaintiff”) as a truck driver in 2009, plaintiff disclosed that he had a disabled son who required daily dialysis. Plaintiff was the only person in his household able to administer the treatment. He requested early shifts, so that he could arrive in time for the 8 p.m. treatment. His supervisor agreed to accommodate his needs by giving him an early shift. DHE’s Human Resources Department was not informed of the request, or the accommodation.
Enter every employer’s nightmare, the rogue supervisor. In 2013, plaintiff’s supervisor was promoted. The new supervisor was informed that plaintiff had a special needs child and needed to work an early shift. The new supervisor was told to work with plaintiff to accommodate his needs. Instead of “working with” plaintiff, the new supervisor promptly moved plaintiff to a later shift, and plaintiff could no longer get home in time to administer the dialysis. Plaintiff complained to his former supervisor, who told the new supervisor about the complaint. The new supervisor, however, continued to give plaintiff later and later shifts, culminating in a shift that began at 12 p.m. and would not enable plaintiff to be home in time to administer the dialysis. When plaintiff complained, the new supervisor laughed and denied plaintiff’s request for an alternate shift or the day off. Meanwhile, eight other drivers started shifts that day well before noon. When plaintiff refused to work the 12 p.m. shift, his supervisor terminated his employment.
Plaintiff filed suit for discrimination, retaliation, and wrongful termination in violation of public policies. Essentially, all causes of action were based on associational disability in violation of the Fair Employment and Housing Act (“FEHA”). In analyzing the notably “seldom-litigated” claim of associational disability discrimination, the Court found that FEHA requires employers to provide reasonable accommodations to an employee associated with a disabled person. The Court’s ruling relied heavily on the fact that FEHA defines “physical disability” to include a “perception” that a person is “associated with a person who has, or is perceived to have,” a disability.
Employers must be cautious when handling an employee’s request for a scheduling accommodation relating to care of a disabled individual associated with the employee. In some cases, courts have found an employer is on notice that an employee requires an accommodation, even if the employee has not explicitly asked. Supervisors should be trained in this regard, and reminded that unlike the supervisors in Ramirez, they must alert human resources when an employee requests accommodation to care for a disabled family member. Finally, try not to think of this as a negative ruling. Even when there is no legal obligation to provide a reasonable accommodation, doing so may strengthen the bond between employee and employer, resulting in a more effective and productive work atmosphere. The law is still new and evolving in this area. Please consult with competent legal counsel when this issue arises.
[1] For the most part, employment laws treat job applicants and employees equally. For ease of reference, this Advisor refers to “employees” only, but please understand that term encompass prospective employees as well.
[2] The Court granted Dependable Highway Express’s petition for rehearing with respect to application of the January 1, 2016 amendment to Government Code section 12940(m). Government Code section 12940(m) states that a request for reasonable accommodation is a protected activity and it is unlawful to retaliate against an employee for making such request. The Court is to issue its opinion by August 29, 2016 though, again, this opinion should address only whether Government Code section 12940(m) was properly applied.
DISCLAIMER: This Advisor is one of a series of business, real estate, employment, estate planning and tax Advisors prepared by the attorneys at Buynak, Fauver, Archbald & Spray, LLP. This Advisor is not exhaustive, nor is it legal advice. You should discuss your particular situation with us or with your own attorney. Our legal representation is only undertaken through a written engagement letter and not by the distribution of this Advisor.
Shannon DeNatale Boyd, Attorney
(Direct) 805.966.7599
[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]
