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Coronavirus and Disability Discrimination Law: Employee and Employer Rights

cdc-w9KEokhajKw-unsplash-scaledMy colleague recently explained how Massachusetts and federal leave laws may apply to employees who contract COVID-19 or who are medically required to self-quarantine because of concerns about COVID-19. In addition to leave laws, such as the Massachusetts earned sick time law and the Family and Medical Leave Act (FMLA)state and federal disability laws provide protections to employees. Disability laws also allow employers to require medical examinations and exclude employees from the workplace in certain circumstances.

The main state and federal laws that prohibit disability discrimination in the workplace are the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Massachusetts General Laws ch. 151B. These laws provide similar protections and generally prohibit discrimination against an employee because of that employee’s real or perceived disability, or that employee’s history of having a disability. Disability laws also require employers to provide “reasonable accommodations” to disabled employees to allow them to perform their jobs. 

Is Discrimination Against Someone With COVID-19 Disability Discrimination? 

A “disability” is defined in the ADA as: a physical or mental impairment that substantially limits one or more major life activities,” a record of having such an impairment, or being perceived as having such an impairment that is not “transitory and minor.” This “transitory and minor” language applies only to perceived disability claimsThe regulations implementing the ADA make clear that the ADA applies broadly, and that major life activities include things like breathing, reading, concentrating and working. The regulations also clearly state that for cases alleging discrimination based on actual disability or a record of disability, even short-term impairments count, so long as they are severe. The regulations state: “The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” Given the breadth of the application of the ADA, and the definition of an impairment, it is my opinion that discrimination against a person who has COVID-19 that is severe enough to limit her ability to work (or any other major life activity) should be considered disability discrimination. 

What Accommodations Must Employers Provide to Affected Employees? 

Employers are required to provide reasonable accommodations for disabilities to allow employees to perform their jobs. The question of what counts as a reasonable accommodation is a fact-specific one, and employers have an obligation to engage in an interactive process with their employees to explore potential accommodations for disabilities. The Massachusetts Commission Against Discrimination (MCAD), and the federal Equal Employment Opportunity Commission (EEOC), have made clear that working from home can be a reasonable accommodation if the employee can perform his or her job from home. The EEOC has stated that even if employees are not currently ill, if they have an existing disability that puts them at increased risk from a pandemic they can request permission to work from home as a reasonable accommodation to reduce their chance of infection. If COVID-19 is considered a disability, remote work should be considered a reasonable accommodation for employees who are sick or at heightened risk of becoming sick. 

Both federal and state courts in Massachusetts have held that a medical leave may be a reasonable accommodation for a disability, so long as the leave is not indefinite. An employee who contracts COVID-19 therefore should be entitled to request a medical leave in order to recover and her employer should grant that leave as a reasonable accommodation. 

Are there Protections for Employees Whose Family Members Contract COVID-19? 

The ADA and Chapter 151B prohibit “associational” discrimination—where an employer discriminates against an employee because of the employee’s relationship with someone who is disabled. An employer cannot take an adverse action against an employee because that employee has a relationship with someone with COVID-19 (though as discussed below, employers have rights to take steps to ensure the health and safety of their workplaces.) However, employees who themselves do not have a disability but have an association with someone with a disability cannot seek reasonable accommodations for that association. If an employee’s child or spouse has COVID-19, the employee is not entitled to an accommodation; for public health reasons it may nonetheless be wise for employers to consider extending accommodations like remote work or medical leaves to people whose family members are ill. 

Can Employers Ask Employees Questions about their Health? 

In general, employers are not permitted to ask employees questions about their health, or require medical examinations, except in limited circumstances. An employer may ask a current employee health questions or require a medical examination if it has a reasonable belief based on objective evidence that either (1) an employee’s ability to perform the essential functions of her job will be impaired by a medical condition or (2) an employee will pose a direct threat to the workplace due to a medical condition. 

However, during a pandemic, the Equal Employment Opportunity Commission (EEOC) says that employers may ask more probing health questions of employees. If an employee calls out sick an employer can ask if the employee is having symptoms consistent with the pandemic. An employer may also send employees home if they display symptoms consistent with the pandemic, and if health officials determine the pandemic is severe, may even take employees’ body temperatures if fever is a symptom of the pandemic. Employers can also implement infection-control practices and require employees to wear protective equipment during a pandemic. 

Employers Can Exclude Employees Who Are “Direct Threat” to the Workplace  

Employers are allowed to remove employees from the workplace if those employees pose a “direct threat” to others that cannot be mitigated by a reasonable accommodation. Whether someone is a direct threat should be measured based on an objective standard, and does not rely merely on an employer’s belief; in the case of pandemics, the EEOC has said that employers should rely on the Centers for Disease Control and Prevention (CDC) or public health authorities in making that determination. 

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Understanding the rights employees and employers have during the coronavirus pandemic requires fact-specific analysis and depends on the guidance given by public health officials. As the situation with the pandemic unfolds, we will continue to monitor how it intersects with employment law. 

If you are having issues with your employer’s approach to the COVID-19 pandemic, call one of our employment lawyers at (617) 742-6020.  

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