Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 812-272-1474 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

As you are no doubt aware, it is illegal for an employer to discriminate against an employee due to the employee’s disability.  What is the impact of the pandemic on this prohibition?

To answer this question, we have to determine whether COVID-19 even counts as a disability.  It is important to understand that the definitions of disability under anti-discrimination statutes are different from the definitions of disability under, for instance, workers’ compensation or Social Security.  Moreover, for purposes of discrimination, New Yorkers have two separate, albeit related, definitions of “disability”:  The definition that appears at New York State Human Rights Law (Exec. Law §292(21)) and the definition given under the Federal Americans With Disabilities Act, 42 USC §12102. 

While the definitions are different, and there has been plenty of litigation about the nuances of both statutes, they both boil down to the following:

  1. An impairment that either substantially limits one or more major life activity or prevents the exercise of a normal bodily function;
  2. A record of having such an impairment; or
  3. Being regarded as having such an impairment.

            Please note that there is no way to determine whether your particular condition meets any definition of “disability” unless you speak to a competent lawyer in your jurisdiction. 

            Given the above generalization, what are some actions you might run into in your workplace? 

Termination:  It is probably illegal for your employer to fire you for contracting the coronavirus.  It is also probably unnecessary.  Employers are being provided with a wide array of resources to cope with quarantines and shutdowns, including ways to pay for paid leave.  Additionally, if all employees in a particular workplace are entitled to the same sick leave provisions, it probably would be illegal for an employer to deny sick leave because the particular illness was coronavirus. 

Could an employer terminate you to avoid having to pay for sick leave under the FFFCRA or New York Paid Leave provisions?  Section 5104 of the FFFCRA prohibits employers from discharging, disciplining, or otherwise discriminating against employees who take leave pursuant to the Act.  Similarly, §1(e)(3) of the New York  Paid Leave Act prohibits retaliation against an employee for taking leave under the act; additionally the New York Act amends New York Labor Law §196-b(7) to prohibit retaliation for requesting sick leave provided under the Act, whether it is coronavirus-related or otherwise.  So, even if COVID-19 is not considered a “disability” under the ADA or Human Rights Law, it’s probably not ok for an employer to fire you for being quarantined.

Requiring Employees To Stay Home:  An employee is not protected by anti-discrimination provisions if the employee presents a “direct threat” to workplace safety.  The CDC’s current guidance raises COVID-19 to the level of a “direct threat.”  Thus, if an employee has coronavirus symptoms, the employer can order the employee to stay home. 

Questions, questions:  Generally, employers are not allowed to ask disability-related questions.  However, an employer is allowed to ask about an employee’s medical condition if the inquiry is job-related and consistent with business necessity.  Thus, an inquiry to determine whether the employee is able to perform the essential functions of the job can be appropriate if the employer has a reasonable, objective belief that the inquiry is necessary.  Similarly, employers are allowed to ask questions that will allow them to determine whether there is a direct threat to workplace safety, so long as there is a reasonable, objective belief that there may be such a threat. 

            In the context of the pandemic, it is probably not a violation for an employer to ask about possible exposure after an employee has been traveling; to make inquiries about symptoms; or to take employees’ temperatures.  However it probably is a violation for an employer to ask asymptomatic employees if they have conditions that make them especially vulnerable to the COVID-19 virus.  Moreover, even though medical information gathered by an employer is usually confidential, an employer could be subject to liability for failing to share information about potential COVID-19 exposure with employees who need to know.

NEXT UP:  In the next blog, we’ll talk about Reasonable Accommodations during the pandemic.

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