What do you do when your employee asks permission to leave work early for a week to care for her disabled son? Do you grant it? Do you reject it out of hand? Hopefully you ask a few more questions and see what you can do to address the situation at hand. What if you don’t, though? That could end up being a problem for you. It is for the Alamance-Burlington Board of Education and the Alamance-Burlington School System in North Carolina. Theresa Schmitz, a teacher at Sylvan Elementary School made such a request of her principal, and she has now filed suit under the ADA. Yes, the ADA does have some bearing here, but, as you may already know, other legal issues abound. Read on to find out more…
(image from timesfreepress.com)
As with all lawsuits this one has a story behind it. This one pulls a bit at the heart-strings. Ms. Schmitz started teaching at Sylvan Elementary School in October 2016. The next month, her minor son was diagnosed with a brain tumor and a rare genetic disorder, leaving him disabled and in need of care. In order to be with her son while her husband was still at work, Ms. Schmitz asked permission to leave at 2:30 p.m., when classes end instead of at 3:15 p.m., when teachers are officially allowed to leave. The principal granted permission for the first week of December 2016. Ms. Schmitz sought permission to do the same the following week, after her son suffered a serious setback. She did not receive a definite response from the principal, so she assumed that she had permission to leave early the next day. The principal then contacted her about having missed bus duty. She told him she thought she had permission. The principal did not respond. Ms. Schmitz then contacted the principal to advise him she would not be at school the following day.
Ms. Schmitz then contacted the Board of Education’s Human Resources Department, informed them of her son’s condition, his need for care and told them she felt that the principal was bullying her and retaliating against her for taking time to care for her son. H.R. told her she would have to take leave and be paid in half-day increments. She did so through the holidays and resumed working a regular schedule in January 2017. Unfortunately, it didn’t end there. According to Ms. Schmitz, the principal began a retaliation campaign against her by “nitpicking” and holding her to a higher standard than the other teachers and “scolding” her over actions she alleges were minor and actually correct protocol. Ms. Schmitz again complained to H.R., after which the principal put her on a Performance Improvement Plan, that she completed, and for which she received a positive review. It didn’t end here, either though. In May, the principal presented her with a pre-written resignation letter and the choice to either sign it or be fired.
Ms. Schmitz received her Right to Sue notification from the EEOC. Her lawsuit alleges ADA violations. Wait. How could she sue under the ADA? She is not disabled. True enough, but the ADA also protects against discrimination based on one’s association with a disabled person. What’s the discrimination here? Ms. Schmitz alleges that other teachers not taking care of disabled relatives were allowed sick time in less than half-day increments on a temporary basis. The EEOC takes the position that if an employer provides certain accommodations for similarly situated people who are not disabled or associated with a disabled person, it must do so for one who is. Ms. Schmitz also alleges that the principal’s actions add up to retaliation for exercising her ADA rights.
Before I get to the takeaways, I want to address another point: Why didn’t Ms. Schmitz file an FMLA interference/retaliation claim? Wouldn’t that be the stronger, more obvious claim? Well, yes, but she wasn’t eligible. Remember the FMLA requires that an employee have worked at least 12 months or 52 weeks and have worked at least 1250 hours in the 12 months leading up to the leave request. Ms. Schmitz had only just started working for the school. That said, yes, an employee who did have the work history and requisite hours would likely have been eligible for intermittent FMLA leave and the school district would have been on the hook for that too.
So here are some takeaways:
- An employee asking for time off or a modified schedule, may actually have rights under the ADA as someone associated with a disabled person;
- If you allow time off or modified schedules for employees who are not disabled or not associated with someone who is, then not allowing it for someone who is might be discrimination under the ADA;
- Proceed with caution any time you look to discipline someone who may have recently attempted to exercise their rights under the ADA or any other applicable federal, state or local law;
- Employees asking for time to care for a disabled relative under the ADA are essentially making a request for a reasonable accommodation. You must engage in the interactive process. That said, you can look for and offer alternatives that are equally effective in addressing the issue at hand. Also, if you can show concretely that the requested accommodation poses an undue hardship (i.e. is more than just a small to moderate inconvenience or expense) then you will not have to grant that request. You may, however have to either provide an alternative or show that no reasonable alternative is available.
- Employees requesting time off or a modified schedule to care for a sick or disabled relative will often be eligible for intermittent FMLA leave.
OK, we’ll stop there for now. Class dismissed.
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