For the past year, employees have been undergoing medical screenings and answering questions about their personal health to gain access to their physical workplaces. Employers can lawfully request their health status or require them to take leave from work if they appear to have symptoms of COVID-19. Despite laws protecting employee privacy and the dignity of being in control of our own medical decisions, the public health emergency resulting from the spread of COVID-19 has drastically changed the landscape when it comes to employment decisions based on disability or perceived disability, the duty to reasonably accommodate and the prohibition against workplace retaliation.
The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces workplace anti-discrimination laws, including the Americans with Disabilities Act and the Rehabilitation Act. The Americans with Disabilities Act makes discrimination based on disability illegal and protects from retaliation individuals who exercise their rights under that law. Other laws, including state and local laws, such as the New Jersey Law Against Discrimination and the New York City Human Rights Law, provide employees with additional protections. Anti-discrimination laws continue to apply during the time of the COVID-19 pandemic, but they must coexist with guidelines released by the Centers for Disease Control (CDC) and state and local health authorities concerning, among other things, an employer’s right to access employees’ medical information and perform health screenings in the workplace. The intertwining of anti-discrimination laws and public health regulations in the current climate has created a question about whether a COVID-19 infection or perceived infection qualifies an employee for anti-discrimination protection based on disability. The answer will be different depending on whether federal or state law governs the employment relationship, and if state law, which state.
Disability discrimination occurs under the federal Americans with Disabilities Act when an employer treats an employee unfavorably because he or she has a disability, has a history of a disability (such as cancer that has entered remission), or because the employer believes the employee has or used to have a disability. However, not all medical conditions equate to disabilities under the legal definition of the term. A person can show that he or she has a disability in one of three ways: (1) he or she has a physical or mental condition that substantially limits a major life activity (such as walking, hearing, learning, or limits the operation of a major bodily function); (2) he or she has a history of such a disability (past depression that is currently being successfully treated); or (3) he or she is subject to an adverse employment action (such as demotion, termination or a change in job duties or pay) due to the employer’s belief that he or she has a physical or mental impairment that is more than something minor and temporary.
COVID-19 and its related symptoms could, under certain circumstances, fit this definition of disability under the ADA. But the agencies and organizations issuing guidance, such as the EEOC and the Job Accommodation Network (JAN), have made the pivotal inquiry whether symptoms are severe or lasting enough to inhibit major life functions such as breathing and self-care. A year ago, it was reported in Market Watch, that the EEOC and Job Accommodation Network had said that COVID-19 alone may not be considered a disability under the ADA if it presented as mild and temporary. However, the Job Accommodation Network lists several conditions on its website that can rise to the level of a disability that share some of these same characteristics with COVID-19.
For instance, Shingles is a transitory viral infection. Other viral infections listed that generally can be controlled to protect most major life activities are HIV and Hepatitis. Other transient conditions listed are Seasonal Affective Disorder, migraines and acid reflux. Potentially controversial but still recognized conditions that can be considered disabling are body odor, fragrance sensitivity, colorblindness, alcoholism, drug addiction and obesity. Additionally, in an analogous public health situation in 2015, the EEOC released guidance regarding the ADA and the Zika virus that stated, “someone with the Zika virus may have a disability if he or she is substantially limited in performing activities such as caring for self, or if major bodily functions, like immune system functions, are affected.”
Most state laws haven’t addressed the issue of COVID-19 as a disability, but under the New Jersey Law Against Discrimination, the definition of disability is broader than its federal counterpart as it does not require that the condition substantially limit any major life activity. Under the New Jersey Law Against Discrimination, a physical disability is defined as “suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device.” This definition encompasses infirmity due to illness, which seems like it could apply to COVID-19 infections and symptoms under certain circumstances.
In neighboring New York, the NYC Commission on Human Rights expressly considers actual or perceived infection with COVID-19 to be protected as a disability under the New York City Human Rights Law — meaning employers must not discriminate against or harass employees with actual or perceived infection with COVID-19 or based on an actual or perceived history of such infection “unless doing so poses an undue hardship or where the disability presents a direct threat that cannot be adequately mitigated by a reasonable accommodation.”
As the laws impacted by this virus evolve, it is no surprise that some employers are opining that mild, short-term COVID-19 cases akin to a cold or flu will not trigger ADA protections against disability discrimination. This position is based on the impact of the virus on the internal functioning of the employee – his or her ability to breathe, talk, eat, take care of themselves, etc. But let’s consider the impact that a COVID-19 infection or perceived infection has on an individual’s ability to operate socially. If an employee is suspected of having COVID-19 or having been exposed to it so that he or she may possibly develop the infection themselves, that individual must immediately quarantine until he or she is known to no longer carry the risk of being contagious. Suspicion of COVID-19 removes people from mainstream society. They can’t leave their homes, come within 6 feet of anyone else, and speaking or even simply breathing near another person is presumed to spread a deadly virus that has put our entire country into lockdown. Even mild symptoms of COVID-19, therefore, result in the substantial limitation of major life activities even if the infection itself remains mild or turns out to have been a different virus entirely.
Employees who are terminated for taking leave from work as a result of having COVID-19 and/or needing to quarantine because of suspected COVID-19 may also seek legal redress by bringing a retaliation claim under federal or state disability discrimination laws. In order to establish a claim for retaliation under the New Jersey Law Against Discrimination, a plaintiff must show that (1) he or she engaged in protected activity; (2) was subjected to retaliation; and (3) a causal connection exists between the adverse employment action and the protected activity. An employee may satisfy the first element of engaging in protected activity by requesting or taking a medical leave of absence if these actions are reasonable and taken in good faith. Unlike a claim of disability discrimination, an employee need not necessarily prove he or she is disabled to have a claim, but instead, must show their decision to take medical leave was made in good faith and reasonable. Thus, if an employee takes leave from work based upon their treating health care providers opinion and consistent with relevant laws concerning COVID-19, they could show that they had a reasonable, good faith belief to engage in protected activity. If they are fired under these circumstances, they may have a viable claim for retaliation.
The interplay of COVID-19 symptoms and disability discrimination laws is complex and still developing. Our employment attorneys will continue to closely monitor relevant legislation and case law that impacts the rights of New Jersey employees at the workplace.