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Americans with Disabilities Act (ADA) Q & A: ADA Protections at Work
by Brian East, Esq., Advocacy, Inc., Austin, Texas

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Wrightslaw Note: This article was posted and published in May, 2007. Since then there have been some significant changes to the Act broadening the eligibility standards. To become current with the revisions, click here to go to our page about the Americans with Disabilities Amendments Act of 2008, also known as ADA AA.

ADA “Association” Claims

Unfortunately, employers sometimes discriminate against parents of children with disabilities, perhaps because the employers fear the expense to health plans; fear infection or genetic predisposition; or think that the disability will “distract” the parents from their job. But the Americans with Disabilities Act (ADA) prohibits most employers from firing a parent, or excluding a parent from a job opportunity or benefit, because the parent has a child with a disability.

Employee in wheelchairWho is protected?

In general, a parent is protected by the ADA if the parent can show the following: (1) the employer has 15 or more employees; (2) the parent is qualified for the job; (3) the employer fires or excludes the parent from an opportunity or benefit; (4) the employer knew the parent had a child with a disability; and (5) the circumstances suggest that child’s disability was one of the reasons for the employer’s bad actions. Under the ADA, a disability means that the child (a) has a physical or mental impairment that substantially limits a major life activity, or (b) has a record of such a substantially limiting impairment, or (c) is regarded as having such a substantially limiting impairment.

I have not been fired, but my boss is taking other action against me because of my child’s disability. Am I still protected?

You may be. In addition to firing, the ADA also prohibits the following types of action taken against a parent because of a child’s disability: refusing to hire, denying a promotion or opportunity for advancement, demotion, denying health care coverage available to others, harassment, and denying other privileges or benefits of employment.

Under the ADA, do I have a right to take leave time to care for my child, or to participate in, for example, IEP meetings or hearings?

Usually not. Although the ADA may prevent firing (and many other bad acts), in most cases it does not require an employer to provide leave (or other reasonable accommodation) to a non-disabled employee who needs the leave in order to care for a child with a disability.

On the other hand, the employer may not treat an employee differently because his or her child has a disability. So if a company gives unpaid leave to others for certain personal or family reasons, it cannot deny similar leave just because the employee needs the time for reasons related to a child’s disability.

Also, the Family & Medical Leave Act (FMLA) may require the employer to provide a period of leave in such circumstances. For more information about FMLA protections, see http://www.wrightslaw.com/advoc/articles/fmla.protect.spolter.htm.

Does the ADA require an employer to provide health insurance coverage to parents of children with disabilities beyond that provided to other employees?

No. The ADA only requires equal access to whatever health insurance coverage is offered to other employees. An employer is not required to provide additional health insurance coverage under the ADA.

However, if the employer’s health insurance plan has terms or provisions that single out specific disabilities (or groups of disabilities, or disability generally), the plan itself may violate the ADA.

What do I do if I think my ADA rights have been violated?

If you think that your employment rights have been violated because you have a child with a disability, and you want to make a claim against an employer, you must file a “charge of discrimination” with the EEOC, within 180 days from the date of the violation. (In some cases, the time period to file the charge may be extended, but you should file it within 180 days to be safe.) If you work for the federal government, you normally have to file a discrimination complaint with your agency’s EEO officer within 45 days. For more information on the enforcement procedures, see http://eeoc.gov/facts/association_ada.html.

What do I do if my employer retaliates against me for filing an EEOC charge, or sticking up for my rights?

Such retaliation is illegal under the ADA. You should file a separate EEOC charge if it happens.

Resources:

Statute: 42 U.S.C. § 12112(b)(4)
Regulation: 29 C.F.R. § 1630.8
Guidance: Questions and Answers About the Association Provision of the Americans with Disabilities Act (EEOC Oct. 17, 2005)

Finding a lawyer in your area:

Your state or local bar association may have a lawyer referral service you can use. You may also contact the National Employment Lawyers Association to ask for a listing of member attorneys representing employees in your state. Their page on finding attorneys is online at http://www.nela.org/other/findLaw.cfm.

About the author:

Brian East is a Senior Attorney with the Texas protection & advocacy organization—Advocacy, Inc.—in Austin, Texas. He is co-chair of the Disability Rights Committee of the National Employment Lawyers Association, and he represents person with disabilities, concentrating on issues involving the ADA, Section 504, and Section 1983.

Contact Info:
Brian East
Advocacy, Inc.
7800 Shoal Creek Blvd., Ste. 171-E
Austin, Texas 78757
(512) 454-4816



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