I am working at a new job for a rather large, well known company. They are covered under FMLA but I am not. Upon being interviewed and upon being hired I informed management that my wife is disabled/ has a permanent illness. At that point this was not a problem. However, I missed one day of work to take her to the emergency room and right away they are pulling me aside, sitting me down and talking to me about "attendance issues" and how they do not want to keep me on if that is going to be a reoccuring event. If they terminate me based off of the assumption that this is going to be something that happens on a regular basis, is that legal?

They may terminate you for any reason not specifically prohibited by law. You do not qualify for any protected leave time, so terming you for attendance reasons would not be a violation, even if they are making assumptions.

But I think you're over reacting. They didn't say they were going to term you; they said they MIGHT think about terming you IF you continued to miss time. That certainly implies that they're not thinking of taking any action unless you continue to miss work.

Whether I am overreacting or not, I find it better to be prepared. I am not the first person at this place of emplyment to have this or similar issues but I would like to be the last. It is my understanding that if they terminate me as a result of this BEFORE the attendance becomes an issue (IE based off of the assumption) I would be protected under the ADA Associate Provision:

"An employer may not make any other adverse employment decision about an applicant or employee due to that person's association with a person with a disability."

Would this be the case?

If they terminate you because your wife is disabled that would be against the law. If they terminate you because you are taking off too much time in their opinion, they may fire you even if your wife is disabled. Anytime I have a newish employee that starts missing time, I try to meet with them and see what the situation is. It isn't unusual simply because most new employees do not take time off if they can help it.

I understand that. I do not want to miss time and I DO want to keep my job. However, I did only miss one day and it was for a severe emergency and since then, I have been having issues with them over it, hence why I requested the info. Thank You for your help.

What issues are you having? From your post it sounded like they just spoke with you once when it happened.

Well I was spoke to the evening I had to call in to take my wife to the ER (which was my first absence). Normally I would not have a problem with this but they really copped an attitude and were asking a bunch of questions like "this isn't going to happen all the time is it?" I was then spoke to the next time I came in about missing work b/c of Liz and how it was unacceptable. Again, I missed one day, a day in which I gave them 3 hours notice and I kept in touch with them periodically on whether or not I would be able to make it in later that evening. Then recently I spoke to them again and I was lied to about the store's medical leave policy (I contacted HR and was informed that even if you are not covered under FMLA, you may take unpaid medical leave if you or a family member will be hospitalized or need constant care for 5+ days). The supervisor informed me that no such policy existed and that I should not "expect special treatment" b/c Liz is sick.
Then recently, this resurfaced again when I was injured. I have missed NO work b/c of it but when I requested to perhaps leave a bit early on a 8 hour shift b/c I had no pain pills and their first aid kits allowed me no way to rewrap my leg (from constant ladder climbing and things my wrap was splitting and I was looking to reapply it). I was taken aside, and not talked to about my leg but rather about how "my absences are going to become a problem." I reminded them that the single day I missed was for an unforseeable family emergency and that I informed them on hire that such events may transpire. I told them that absences such as these would not be commonplace and normally if I missed a day or two for Liz's health, I would inform them a week ahead of time that I needed said days off for appointments and procedures and whatnot. Again, they continued to dwell on the issue that "they believe it is going to become a constant thing."

I am really on edge about this whole thing. I do not want my wife to have to be rushed to the ER for another big issue (The last one was a bloodclot that almost lead to a Pulmonary Embolism. It was serious) and then be lectured for a month for missing one day because of my wife's disability. Also, If I am sick, and I miss a day, which rarely, rarely happens (I went through my entire k-12 school without one full absence. Missed 1/2 a day on account of a broken arm) I do not want to be pulled into the office and lectured because of my attendance. If attendance became a problem, I can obviously see them treating it as a problem. I can also see them giving me a heads up going "hey, if you miss X more days, you will be in violation of the attendance policy." But, I cannot see them raising a constant red flag on account of me missing a single day and then referring back to missing days on account of my wife's disability whenever I'd miss a day for anything else. It is excessive and IMO they are assuming I am going to be a habitual offender on account of my wife's disability. I wanted to make sure that if they harass/terminate me on this assumption I am able to do something about it.

The ADA does not require your employer to accommodate you because of your disabled wife's need for medical care, emergency or otherwise. An employer is not required to be more tolerant of your absences simply because they stem from your wife's disability.

However, if other new employees are allowed to miss a day or days without "being pulled aside, sat down with, talked to about 'attendance issues'" and told that they will not be retained if this is going to be a recurring problem, it would be a violation to do so with you simply because your absence and potential future absences are related to your wife's qualified disability. Your employer would be treating you differently than other employees because of your association with a person with a qualified disability.

That is what I am saying. One of the new employees took her first full week off to care for a sick family member using the policy they lied to me about. There is another that has missed two days via absence already. I have talked to them. They were never asked if these were going to be reoccuring things or lectured on the issue. I also do not want to be lied about policy when other people are making use of it.

I am not asking for a handout here. When I talked to HR they offered that to me and I told them that they do what they have to do but don't give me a bunch of leeway that is going to upset my boss. I am just looking to be treated like the rest of the employees.

Have you asked about the policy HR told you about? It may just be that your supervisor doesn't know about it, not that they lied to you. The policy also seems to grant leave only if it is needed in 5 day increments. I'm not saying I agree with the policy, but it is permissible to have such a policy.

How long have you been there? How long have these other folks taking leave been there?

The issue of not knowing the policy is in the midst of being worked out. I was told by the HR director who works with my supervisor (the store manager) that "she knows about the policy, but she may have forgot." Whether she did or not, we will work out.

As far as those other people, they took orientation with me. We were officially hired on the same day. Yet, one of them is able to take a week of leave and another is able to miss two days on account of sickness and not be lectured and I miss a single day b/c of an emergency and they continue to refer to it/ bring it up. IMO it is b/c Liz has a disability. I see no other reasoning. I do my job. I do it well. Out of the new employees (there were others hired in that same week) thus far I am the top performer. I have had no other issues. I love the job and want to keep it but I want to be treated as any other employee would be treated, not like the guy who's never gonna be here b/c his wife is sick.

At this point though, your employer hasn't taken any adverse action. You can't sue them because at some point in the future you fear they might discriminate against you. It may have been overkill to speak with you about your future need for leave or it may not. If the others were off for things that aren't likely to require any future absences, then it doesn't make sense to speak to them about it. As you claim to have told them from the get go that you may need to take time off due to your wife's condition, it does give them a reason to at least address it. Not being there I can't speak for the tone of voice and what you perceive as having an attitude. But so far, they haven't done anything that you could take action over.

I know this but again, I needed to know if it does happen, because while I may be over-worrying it does feel like it could happen, what rights I have and what course of action I can pursue. Thank you guys for all your help. Hopefully I do not EVER have to post another issue on here, lol.

Depending upon how frequently he was talked to about his attendance, his employer's actions might be viewed as harassment.

Twice, once right after it happened and again when requesting time off for another reason, would not be harassment.

I counted at least four occasions in his recitation when this was discussed with him. Add to that the nature of the discussions, the comment about not expecting special treatment because of his wife's condition and raising her condition when he's absent for some other reason, given that he's only missed 2 or 3 days and a few hours, and I think his supervisor's excessive attention is about to cross that line that separates reasonable treatment from harassment.