Is COVID-19 A Incapacity Below Discrimination Legislation? The Subsequent Wave of Office Lawsuits Could Reply Query | Fisher Phillips
Given the increasing number of employees diagnosed with COVID-19 who need a leave of absence to recover from the virus, the question arises whether COVID-19 is an employee under the Americans with Disabilities Act (ADA) or of an employee being “disabled” makes other state and local anti-discrimination laws. A recent lawsuit filed in New Jersey asked the court to say yes and to designate an employee diagnosed with COVID-19 as disabled under the New Jersey Law Against Discrimination (LAD). In Tihara Worthy v. Wellington Estates LLC, a former employee claims she was wrongly terminated and was not allowed to return to work because of COVID-19, which she describes as a “disability”. As many non-essential businesses begin to reopen their doors, this lawsuit raises questions that many employers are likely to grapple with in the weeks and months to come.
Tihara Worthy claims that she was employed by Wellington Estates as a Certified Medical Assistant from May 2018 until her resignation on May 16, 2020. According to Worthy, she learned on April 19 that she tested positive for COVID-19 and immediately notified her employer and began a leave of absence.
A few weeks later, on May 11, Worthy claims she had a negative COVID-19 test and was cleared to return to work on May 16. Worthy claims she was fired before returning to work and said she was not welcome back because she contracted COVID-19 and “could have made everyone sick”.
The complaint alleges a violation of the KOP due to a disability or perceived disability, as well as an allegation of unlawful dismissal under common law in violation of public order based on a recently enacted law prohibiting employers from dismissing employees taking time off due to COVID -19. Worthy seeks, among other things, the reinstatement of employment and all benefits, back payment, prepayment, damages, punitive damages and legal fees.
It is worth noting that these allegations are unproven allegations at this point and the employer will have the opportunity to defend themselves in court and tell their side of the story. However, a simple review of these allegations can help employers formulate proactive plans to avoid being served with such a complaint in the future – or develop key defense strategies in the event a legal battle arises.
Is COVID-19 a Disability?
COVID-19 is a virus that causes a range of mild symptoms to severe illness in infected people. Although COVID-19 can be fatal in certain cases, people who become infected with the virus often experience symptoms for a limited period of time and once the symptoms go away they will no longer test positive for the virus.
The ADA defines “disability” as a physical or mental impairment that severely restricts one or more important life activities. The EEOC has not yet decided whether COVID-19 is a disability under the ADA. During a March 27, 2020 webinar titled “Ask the EEOC,” the agency declined to answer the question of whether COVID-19 is a disability under the ADA, stating that it was “unclear” whether it was Virus is or could be a disability that it is a new virus that medical experts are still learning about.
Other jurisdictions with more extensive disability protections have taken a more definitive stance. For example, the New York Human Rights Commission has stated that it “regards an actual or perceived infection with COVID-19 as a disability under New York Human Rights Act”. Accordingly, New York City employers cannot harass or discriminate against an employee based on their COVID-19 infection status, and employees with the virus may be entitled to reasonable accommodation in the workplace.
In relation to Worthy’s lawsuit, the LAD defines disability as “a physical or sensory handicap, infirmity, deformity, or disfigurement caused by bodily harm, birth defect, or illness … that results from anatomical, psychological, physiological or neurological conditions preventing typical physical or physical exercise mental functions or can be proven medically or psychologically by recognized clinical or laboratory diagnostic techniques. “It specifically includes AIDS or HIV infections in the definition.
Although the KOP is often interpreted broadly, it remains unclear whether COVID-19 meets the legal definition of a disability. Only if COVID-19 falls under the definition of a disability can an employee who has become infected with the virus have a viable right to discrimination under the LAD. If not, an employee who was infected with COVID-19 has no identifiable right to discrimination, and every time the employee takes off work because they are recovering from the virus, it is not considered a job-protected vacation under the KOP . In the latter case, an employer would not violate the KOP by not allowing an employee who has contracted COVID-19 to return to work.
But is there no protection for employees who take time off because of COVID-19?
Regardless of whether a person infected with COVID-19 is classified as disabled, occupational health and safety can exist if the infected employee has taken a break from work. For example, the Emergency Paid Leave Act under the Federal First Response Family Coronavirus Act provides eligible employees with up to 80 hours of paid sick leave for COVID-19 reasons. Many states and communities have also passed vacation laws for those affected by COVID-19.
For example, New Jersey has passed a new law providing occupational health and safety for sick leave related to infectious diseases such as COVID-19 during the public health and state of emergency declared by the governor in Executive Order 103. In particular, the law prohibits employers from dismissing an employee or refusing reinstatement if the employee applies for work or takes time off on the recommendation of a doctor because the employee has or is likely to have an infectious disease that can infect others in the workplace. In addition, employees infected with COVID-19 can be offered a job-protected vacation under the New Jersey Earned Sick Leave Law.
What should employers do?
Because different jurisdictions have different views on whether COVID-19 is a disability, you must review all state and local guidelines issued in your area to understand whether COVID-19 infection is classified as a disability under the law. Regardless of whether COVID-19 is classified as a disability, there are many vacation laws that allow employees infected with the virus to have job-protected time off.
In New Jersey, the state at issue in Worthy’s lawsuit, if an employee presents medical records in support of a vacation related to COVID-19, you must be granted vacation for the length of time recommended by the employee’s health care provider. It is important that as soon as the employee is cleared to return to work and there is no longer any risk of infecting others with the virus, they should be given the opportunity to return to work without changing their employment conditions.
To the extent that you are considering firing an employee who is in or has recently returned from an absence related to COVID-19, the decision cannot be made in whole or in part as the employee with COVID-19 was infected or was on leave because you were infected with COVID-19. Before doing so, you should consult your employment advisor to assess the risks associated with making such a decision, including possible fines. You must understand the web of potential federal, state, and local vacation entitlements in order to properly grant vacation employees with COVID-19.
We will continue to monitor the Worthy litigation and report on any developments that may affect the treatment of employees infected with COVID-19 under disability laws. Make sure you have subscribed to the Fisher Phillips Alert System for the latest information. For more information on COVID-19-related litigation across the country, check out our COVID-19 Employment Litigation Tracker. You will also find a listing of our litigation and team members handling these types of cases in our COVID-19 Labor Disputes and Class and Class Actions section.
For more information, please contact your Fisher Phillips attorney, the author, or a member of our Post-Pandemic Strategy Group roster. You can also read our FP BEYOND THE CURVE: Frequently Asked Questions about Post-Pandemic Employers and our FP Resource Center for Employers.
This legal warning provides an overview of a specific situation that is developing. It is not intended and should not be construed as legal advice in any particular factual situation.
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