If family member is 'high risk,' must you accommodate?

• Author: Hyman, Jon
• Position: WHAT I WOULDN'T DO: Legal Updates from HR's Trenches

One of the questions I have received most from clients during this pandemic comes in some form of the following: "An employee [does not want to come into work/wants to work from home/wants a leave of absence] because he or she lives with someone who is at high risk for coronavirus complications. What do we do?"

In other words, must you accommodate an employee for a close family member's age or disability?

According to the EEOC, the answer to both is, "No."

Federal age-discrimination law does not impose upon employers any reasonable accommodation obligations. And while the ADA prohibits discrimination based on "association" with a disabled person, that protection does not require you to accommodate an employee without a disability based on the disability-related needs of a family member.

According to me, however, the answer is, "It depends." It depends on how you have historically treated similar requests by similarly situated employees.

If an employer has a history of accommodating employees similar to an employee requesting an accommodation for being associated with someone at risk for coronavirus complications, the employer would be open to claim of disparate treatment by denying the employee's accommodation request. So you'll need to review any similar requests by other similarly situated employees.

Moreover, remember that the law is a floor, not a ceiling.

As the EEOC points out, "An employer is free to provide such flexibilities if it chooses to do so." Further, during the pandemic, the DOL "encourages employers and employees to collaborate to achieve flexibility...