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- Title
Caregiver Accommodation.
- Authors
Perdue, Abigail L.
- Abstract
In 2020, there were approximately 53 million Americans caring for a family member with a disability. Each day, many of these American caregivers face an incredibly difficult dilemma: lose their livelihood (and the health insurance and financial benefits that it provides) or sacrifice their loved one's care. Low-income individuals and single parents are particularly vulnerable. Unfortunately, the Americans with Disabilities Act of 1990 (ADA), as amended, does not currently provide robust protection for these individuals. This is because it prohibits associational discrimination, which means that the ADA forbids covered employers from discriminating against employees or applicants due to their known association, familial or not, with a person with a disability. However, it does not require employers to engage nondisabled employees and applicants in a good faith interactive process to find a reasonable accommodation that would enable them to continue their employment while caring for their disabled loved ones. To the contrary, the ADA currently permits employers to reject caregivers' requests for reasonable accommodation out of hand. This troubling divergence between what the ADA should do and what it actually does prompts the narrow question that this Article explores: whether the ADA's associational discrimination provision should be amended to require covered employers, under certain limited circumstances, to at least engage in a good faith interactive process with employee-caregivers of people with disabilities regarding their requests for reasonable accommodation where those requests directly relate to the frequent, substantive, and continual care they must provide to family members with disabilities. Because caregivers should not be forced to choose between their jobs and their loved ones, this Article contends that Title I of the ADA should be amended to require covered employers to at least engage in a good faith interactive process with caregivers of people with disabilities to determine whether a reasonable accommodation may be provided that will enable caregivers to effectively perform the essential functions of their jobs while still providing adequate care for their disabled loved ones.
- Subjects
CAREGIVERS; AMERICANS with Disabilities Act of 1990; EMPLOYMENT discrimination; GOOD faith (Law); JOB performance
- Publication
Berkeley Journal of Employment & Labor Law, 2023, Vol 44, Issue 2, p207
- ISSN
1067-7666
- Publication type
Article
- DOI
10.15779/Z38930NW3W