One of the most important benefits most people get from their jobs is health care insurance for themselves and their families. This health insurance becomes of vital importance when a family member falls into a prolonged illness. From the employer's perspective, especially where the employer is self-insured, a prolonged illness for an employee's family member becomes a cost liability which can create an incentive for the employer to rid itself of both the employee and their sick family member. Where this occurs the Americans With Disabilities Act (ADA) may provide some protection for the employee and their family.
The ADA prohibits discrimination against an employee "because of the known disability of an individual with whom the [employee] is known to have a relationship or association." This is commonly referred to as protection against association discrimination. Two recent cases, one decided by the United States Court of Appeals for the Seventh Circuit, DeWitt v. Proctor Hospital, and Trujillo v. Pacificorp decided by the United States Court of Appeals for the Tenth Circuit illustrate this protection and in both cases the employer was self-employed.
In Dewitt, the employee's husband became ill with prostrate cancer. The employer paid medical costs up to $250,000 per year before a "stop loss" policy kicked in. Each quarter the employer had compiled a roster of all employees whose claims had exceeded $25,000. When the bills for the employee's husband's treatment began mounting she was confronted about them and asked what type of treatment he was receiving and whether less expensive alternatives had been considered. The hospital became concerned about the costs, its own overall financial situation and resolved to be "creative" in cutting costs. And so the employee was fired.
The Court ruled that a jury should consider the employee's claim of "association discrimination" in violation of the ADA. It noted that the firing followed close in time expressions of concern to the employee regarding the costs of her husband's medical care and the employer's resolution to be "creative" in cutting costs. Therefore, the court ruled that a reasonable juor could conclude the employer was concerned that the husband's illness could linger for years and at great cost to the employer and so therefore the employee was fired in violation of the ADA.
Trujillo v. Pacificorp presents a similar sad story. The Trujillos, husband and wife, both worked for Pacificorp and had for many years, he for 25 and she for 8 years. Their son developed a brain tumor that metasized into his spine. Aggressive and costly (in excess of $62,000) experimental chemotherapy was undertaken but was unsuccessful. Pacificorp designated claims exceeding $50,000 as high-dollar and healthcare costs for each employee were factored into the plant's budget line item for labor costs.
Eleven days after the Trujillos' son suffered a relapse and began the final chemotherapy regiment the employer began an investigation into alleged time theft by the Trujillos. The evidence showed that the company did not use a time clock, that supervisors usually approved employees' time sheets based on their observations during the work day, that time sheets were somtimes filled out in advance, that supervisors sometimes allowed employees to leave early but to record a full shift, and that employees frequently used a "piggyback" procedure to pass through a security gate in which one employee would use his security card to get the gate to open and other employees would walk in as well. Nonetheless, Pacificorp accused both of the Trujillos with time theft and terminated them.
The court ruled that evidence that Pacificorp had general concerns about the rising cost of healthcare, that the claims for the Trujillos' child were considered "high dollar," that there was only one other "high dollar" claim during the relevant time frame on which the employer kept close tabs, that insurance costs were factored into the budget line item for labor costs of each employee, and that the investigation regarding the Trujillos' alleged time theft was one-sided and incomplete was enough for a jury to find in their favor at trial.
The DeWitt and Trujillo cases also illustrate general problems that arise from the United States' system of employer-based healthcare insurance. It seems reasonable for employers to be concerned about rising healthcare costs and the effects those costs have on their ability to compete in their business fields. And yet it is horribly unfair to fire an employee because they have an ill family member that is generating substantial insurance costs for the employer. The current system and the ADA mandate that cost be borne solely by the employer who is unlucky enough to employ an individual unlucky to have a family member suffering from a serious illness. One might reasonably suggest that a single-payer system in which the costs were borne more widely would be more equitable and fair to both the employer and the employee. It may also eliminate the impulse for "association discrimination" behind both of these cases.
Robert L. Abell
www.robertabelllaw.com
