Work, COVID-19 and Disability
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COVID-19 has raised a number of challenging workplace issues as parts of the country relax restrictions and people return to work. Here are a few.
Jennifer is an obstetrician who has been asked to go back to work at her hospital in a week. Like millions of other Americans, she has persistent asthma.
Jason is 60 years old and was laid off from work related to restaurants during COVID-19. He was told that the decision to fire him was that he belonged to a risk group (over 60 years old) while younger people were kept.
Nahom is the CEO of a small business and wants to make sure employees don’t get sick when they return to work. He wants to run a COVID-19 test on workers before they come into the office.
There are a number of steps employers can take to help protect a workplace from COVID-19 and ensure compliance with the Americans with Disabilities Act, the federal law that protects people with disabilities from discrimination. To be covered by the ADA, the employer must have at least 15 employees, the employee must have a statutory disability, and the employee must be able to do the job, explained Professor Robert Dinerstein, director of the Disability Rights Clinic at American University Washington College of Law. He points out that an employer must consider the situation of each employee – or potential employee – individually.
Nahom’s situation is perhaps the simplest. In precisely this situation, the federal government issued technical assistance and guidelines. As this would be a compulsory medical test, it must be “job-related and consistent with business need”. An employee with COVID-19 could pose a “direct threat” to other employees and everyone else in the workplace. Nahom can request COVID-19 testing of all employees before they enter the workplace. The test needs to be accurate and reliable, and Nahom needs to remember that an elevated temperature is just a sign of COVID-19. Nahom can request that an employee with COVID-19 symptoms stay at home and request a doctor’s letter if the employee is ready to return to work. To ensure safety in the workplace, Nahom can also require employees to take certain safety measures. Indeed, the Labor Protection Agency has issued new guidelines for employers regarding social distancing, providing face masks, and other appropriate steps during a pandemic.
The other situations are more complicated.
Jennifer’s persistent asthma would likely qualify as a disability. The next question, explains Dinerstein, is whether what she does is an “essential function” or a fundamental responsibility of that position. In this case, the employer can request that Jennifer be available to carry out these tasks. Conversely, if delivering babies is a “non-essential” function, the employer cannot refuse to accept their disability.
Assuming that the delivery of babies is considered essential, the best advice for Jennifer is to find out if her employer can provide adequate housing for her without causing “undue trouble”. That would mean making changes in her work environment so she can do her job. To see if this is possible, Dinerstein suggests that she do an interactive process with her employer in accordance with EEOC regulations. While one option is to move all telemedicine appointments to Jennifer and move babies to a different doctor, delivering babies could well be defined as an “essential function” that Jennifer cannot perform. Jennifer, on the other hand, could try to rearrange her responsibilities and deal with a different doctor, although the employer doesn’t have to accept this new division of labor. Even if Jennifer voluntarily agrees to take leave without pay, the employer may not have to accept it as it could create “undue trouble” if, for example, an employer had to keep his position open.
Although federal government guidelines state that employers should try to take in someone like Jennifer, ultimately that doesn’t seem to stop the employer from firing her if she can’t get to work, notes Ruth Colker, a law professor and expert on discrimination on the grounds a disability who teaches at Ohio State University Moritz College of Law. Before Covid-19 began, according to Professor Colker, the courts were at odds over whether employers should allow workers to telework as accommodation. It is to be expected that this problem will continue to occur in the Covid-19 workplace.
As for Jason, this situation can be covered by the ADA as it covers employees who are not disabled but are considered as such. Nancy Kim, a law professor at the California Western School of Law, believes firing an employee for no reason other than age 60 is discriminatory. “Employers must be careful not to discriminate against employees just because they are older. The Age Discrimination at Work Act protects workers over the age of 40 from precisely this situation. “In Dinerstein’s view, this could be a situation that warrants further investigation by a lawyer.
Many more problems will arise, such as: For example, whether an employee can stay home if a family member has been diagnosed or has a disability, or whether an employer can prevent an employee from coming to work because the employee is associated with a COVID-19 . The pandemic will continue to pose economic challenges.
DISCLAIMER: This post does not contain any legal advice and should not be relied on as legal advice.
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