Volume 10 Issue 03
Parents as Caregivers, Not Qualified Employees under the ADA
This winter has surely been one for the record books, with more snow and extreme temperatures than we have seen for years, decades even. As a result, students have had more snow days than the average year as well. So what is a parent of a child with a disability to do when there is no one to care for the child during these extended breaks from school?
JAN frequently answers questions from parents about their rights under the American’s with Disabilities Act (ADA) when extra leave from the job is required, or a flexible schedule is warranted because of a child’s need for medical appointments, treatment, or therapy. But this winter, JAN saw a substantial increase in the number of calls from parents of children with disabilities asking about workplace accommodations. The increased number of snow days necessitated an alternate plan of care, and parents, as caregivers, need changes in the workplace in order to respond.
However, accommodations provided under the ADA are strictly for job applicants and employees with a disability. Parents of children with disabilities have no rights to accommodations based on the child’s disability. The only provision under the ADA that would apply to a parent of a child with a disability would be the Association Provision, which states that an employer cannot discriminate against employees because of their known relationship or association with an individual with a disability. What that might mean is that if an employer allows for leave, working from home, or a modified schedule for other employees who have personal needs such as child care issues or who are taking classes, then the employer would need to provide the same type of modifications in scheduling for parents of children with disabilities and not treat them disparately.
The Family Medical Leave Act (FMLA) may be an alternative to an accommodation of leave under the ADA. The FMLA provides for twelve weeks of job-protected leave to care for yourself or a family member (including a child) with a serious health condition. The FMLA leave may be taken all at once, or intermittently as the medical /health needs require. Generally, private employers with 50 or more employees are covered by the law. Private employers with fewer than 50 employees are not covered by FMLA, but may be covered by state family and medical leave laws.
For more information, see: Questions and Answers About the Association Provision of the Americans with Disabilities Act, Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities, Employer Best Practices for Workers with Caregiving Responsibilities, and The Employee's Guide to the Family and Medical Leave Act.