When it comes to the world of requests for disability accommodations under the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act, the “black box” or the “unseen internal mechanism,” is the ever elusive “interactive process”. This is the process of information gathering and discussion between the employee requesting the disability accommodation and the employer who is obligated to determine whether the accommodation requested will be granted. I analogize this process to a “black box” because it is inherently opaque. Why? While the ADA and the Rehabilitation Act require that both employers and employees engage in this interactive process, neither statute precisely defines what it is or when it starts or ends. It is not clear what precisely the employer must do in this process or what the employee can and should expect. How long should the process take? How does anyone know if they are doing it correctly? How do we know the proper accommodations were considered?
Now factor in the public health, work place safety, and personal medical complexities of the Covid-19 pandemic and the concomitant work-from home revolution and the box becomes even blacker. Do employers have to offer the same accommodations to teleworkers that they offered to workers when they were on site? Are accommodations automatically available for those with health conditions that put them at greater risk for Covid-19? If a disabled employee was able to do her job during temporary telework periods due to Covid-19, is she entitled to continue telework after the employer resumes regular operations? More importantly, what is the specific “interactive process” that will be used to decide these issues?
For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to email@example.com. Thank you for listening.
Are we a more racially tolerant society today, in terms of how we treat one another at work? The following statistics demonstrate that we in fact are. As an employment attorney, I sit watch on the front lines of employment discrimination involving race. Honestly, I believe the number of race cases coming through our offices has decreased since 1997, the year I hung a shingle and began practicing employment law. Sure, we have handled quite a number of race cases over the past twenty four years, but not as many as you think given todays social and political upheaval.
The U.S. Equal Employment Opportunity Commission (EEOC) has published statistics for race cases filed with the agency for the period 1997-2019, pursuant to Title VII of the 1964 Civil Rights Act. Click Here for complete statistics. In 1997 the EEOC received 29,199 cases. By 2019, that number actually decreased to 23,976, a decrease of 5223 or 8%. The highest number of cases filed was 35,890 in 2010 during the “great recession”. These numbers do not include the unreported cases that were never filed due to early successful settlement negotiations between the parties. The numbers above also do not include employment litigation filed directly in federal court pursuant to 42 U.S.C. § 1981, which does not require an employee to administrative exhaust his/her claims before the EEOC. The above statistics demonstrate an actual decrease in race discrimination cases filed with the EEOC, which is contrary to the current social and political environment we are living through. To be clear, even one case of racial discrimination is far too many. For what it is worth (“$$”), the total value of reported settlements went from $41.8 million in 1997 to 79.8 million in 2019, an increase of $38 million. However, 2013 recorded the highest value of $112.7 million, evidencing an increase in racial discrimination claims filed during the “great recession” time period. Whether or not the “great recession” statistics will duplicate themselves during the Covid-19 era will have to wait a few years, as the cases pour in.
On March 23, 2020, the U.S. Supreme Court issued a unanimous decision in Comcast Corp. National Association of African American-Owned Media which made it more difficult for employees claiming race discrimination in employment to demonstrate that their race was the “but for” reason for the adverse employment actions they received at the hands of the employer. This means that employees have to provide more detailed factual evidence, either direct statements by supervisors and managers or strong circumstantial evidence, to get to a jury in Section 1981 cases, but not Title VII cases. In other words, your evidence better look like an 80% chance or better than you experienced race discrimination or your case will be dismissed. This is how I have always interpreted the “but for” standard announced by the Court in the above case and in other Supreme Court discrimination cases such as age and retaliation. By the way, I did conduct a search for statistics for Section 1981 cases on pacer, but could not locate the specifically identified Section 1981 cases filed during 2019.
On the front lines, employees at Facebook recently brought claims for race discrimination to the EEOC. On July 2, 2020, NPR reported ‘We Have A Black People Problem’: Facebook Worker Claims Racial Discrimination. According to the NPR story, “In a complaint filed Thursday with the Equal Employment Opportunity Commission, Oscar Veneszee Jr. said the social network does not give Black workers equal opportunities in their careers. “We have a Black people problem,” Veneszee told NPR. Veneszee is a Navy veteran who recruits other veterans and people of color as part of diversity initiatives at Facebook’s infrastructure division. “We’ve set goals to increase diversity at the company, but we’ve failed to create a culture at the company that finds, grows and keeps Black people at the company.” Veneszee, who has worked for Facebook since 2017, filed the employment discrimination charge along with Howard Winns, Jr., and Jazsmin Smith — both of whom Veneszee recruited — who said they applied to work at Facebook but had not been hired, they alleged, because they are Black. The claim, they said, was filed on behalf of “all Black Facebook employees and applicants to Facebook.”
Now that we know the above EEOC data, let’s take a look at what type of facts are being alleged regarding race discrimination at work. Fortunately for us, Facebook employees have provided internal examples. On November 7, 2019, a dozen anonymous current and former employees posted a Memo on Medium recounting racial discrimination at Facebook. I have reprinted the examples in their entirety below in order to provide you with the racial and ethnic experiences employees at Facebook are facing. After twenty-four years of practicing employment litigation for employees, these examples are common across all companies, not just at Facebook. It is one thing to conclude about the effects of racial discrimination and make pronouncements, but it is ever more impactful to read the day in the life examples emanating from within a company like Facebook. The more you see the mechanisms of racial discrimination in the workplace, the sooner you can protect yourself and your colleagues from the abusive and invidious biased behavior of management staff and coworkers. We should all make it a personal goal to learn about the factual patterns of race discrimination in order to attack it internally and stop it from ruining more careers and lives. So, here are the examples to guide you in your own employment situation:
“The experiences highlighted here invoke how we, the twelve Facebook employees present and past who are sharing our stories here anonymously, have been made to feel as employees by Facebook managers, HR business partners, and their immediate white colleagues. To avoid positively identifying the individuals involved, we will not name the people or business units involved. However, all of the below incidents are factual, with witnesses corroborating the behaviors, and have been thoroughly documented.
1.Over the half, I have received dozens of anonymous, highly positive peer reviews in the internal performance management tool about my work, my partnership, my collaboration, and my leadership. This feedback was received from people across all levels, from those more junior in their careers, to VPs reporting into senior leadership of the company. My manager chose to ignore this feedback and focused on a single piece of anonymous negative feedback that had no context. The feedback from this person was that I was arrogant, aggressive, and self-serving. When asked about the situation this occurred, she said “this is what someone perceives of you, so you need to change your behavior if you want to stay at Facebook.”
2. While eating breakfast, two white employees asked me to clean up after their mess. I am a program manager. I told my manager about the incident. She told me I need to dress more professionally.
3. My manager approaches other leaders and managers with manipulative comments in an effort to sway opinion against me. Statements such as “wouldn’t you agree that she is only focused on herself” and “many people have said that she is not smart” have been shared with me by those whom my manager has been in contact with. When those statements that were intended to negatively influence did not work, my manager used those statements without attribution in my performance review.
4. My manager has directly asked at least two colleagues to provide me negative feedback on my performance review in order to influence my performance rating, which would negatively impact my total compensation. My colleagues refused and instead referred the incident to HR. HR took no action.
5. I spoke at a regular team meeting and gave my opinion about a topic I am a subject matter expert on. I was told after the meeting by the manager that I was disrespectful for speaking at this meeting, that my opinion was not wanted, that I was being arrogant in sharing that opinion, and not to speak at any future meetings unless called upon.
6.On Blind, the app that allows for Facebook employees to post anonymous experiences, we see our colleagues treating us with an aggression unshackled from the constraints of Workplace.
7. I was accused of being a liar and stealing others’ ideas. I asked for specifics about what I allegedly lied about and what I allegedly stole. The response was the person(s) who accused me of this behavior wished to remain anonymous because they did not feel comfortable around me, and that I should assume good intent of them. I asked why good intent was not assumed of me and how I could possibly respond to anything that has absolutely no substance; my manager’s response was that their intent was pure. When asked why others do not need to assume good intent of me, I was told I need to be quiet, more reserved, and highly respectful towards others. When asked how I should respond to the accusation of theft, she said “only I will give you credit for your work, so don’t self-promote on Workplace.”
8. I asked about career growth. I was told to just do my core job. “There is no growth for your role.” The only way for a promotion was to “do what I say”, to “not speak to others outside the team unless given permission”, to “not post on Workplace unless it is a project update”, and to be subservient to her whims.
9. My manager has stated she does not need to attend manager development trainings beyond Facebook Manager Essentials because she only receives positive feedback from her peers. My manager has also stated she is very inclusive and does not need to attend the Managing Bias or Managing Inclusion classes. To further highlight the lack of personal accountability represented here, a majority of Facebook’s development programs are not mandatory, and no follow up is done from the programs, that allows bad actors to continue their behaviors without question.
10. Our org, which is incredibly diverse in representation, had very low Pulse results in the last half. Rather than be transparent about the changes we need to make, our leader said it was our fault for low Pulse scores and we need to do self-reflection on how to improve our performance.
11. Much of my manager’s behavior occurs verbally. When asked to reiterate comments via text, either in Quip, on Workplace, or via email, she misstates her comments, carefully avoids confirming everything that was said, and uses statements such as “as we discussed” or “as you confirmed” in an effort to hide her intentions and protect her from potential HR or legal action.
12. I was told by my HRBP, after approaching her about the discrimination on my team, “there is no bias at Facebook.””
If you would like more information about this topic please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or email to firstname.lastname@example.org.
In this episode of the Employee Survival Guide we discuss how to apply for disability benefits through your employer if you fear for your personal safety at the workplace due to Covid-19. Whether you have an anxiety or panic disorder or you are trying to protect your vulnerability due to Covid-19, Employment Attorney Mark Carey will give you a short guide about how to apply for your employer’s Short Term Disability benefits and Long Term Disability benefits under a federal statute called ERISA (Employee Retirement Income Security Act). Mark will also discuss the very important overlap with the Family Medical Leave Act, the Americans With Disabilities Act and state antidiscrimination laws. He will show you how protected you actually are against your employer unfairly terminating you for taking a much needed disability leave of absence due to Covid-19. For more information, please contact Carey & Associates, P.C. at 203-255-4150 or email at email@example.com.
By Fran Slusarz,
Mid-century was the golden age of futurism and if you are of a certain (ahem) age, you spent far too many hours on Saturday morning watching cartoons about The World of Tomorrow. Flying cars and jet packs featured prominently, along with voice activated appliances, innumerable tv screens, robots that sweep up after you: everything the middle-class, white, heterosexual, single income family could need. The best minds of the Boomer generation predicted Skynet would become sentient on August 4, 1997, and set out to destroy humanity shortly thereafter. The best minds of my generation were slightly kinder: our robot overlords let us think we lived in an imperfect dream world.
I’ve been thinking about these days of past future recently because we’re at a crossroads. Articles abound predicting what our workplaces will look like as businesses reopen, but all we know for sure is that it won’t be the same. Even after a vaccine for COVID-19 is widely available and herd immunity kicks in, some changes will be permanent. There is no hard reset to January 2020.
The Discrimination We Are NOT Seeing
When the pandemic first took hold in New York, we thought we would see rampant discrimination on the basis of COVID-19 status, risk of COVID-19 exposure, or risk of serious complications from COVID-19. Frankly, our only frame of reference was HIV/AIDS in the 1980s. We expected people to have the same irrational fear or working alongside someone who had been sick or may have been exposed.
While many people are, naturally, fearful of developing COVID-19, we are not seeing the fear of the individuals affected as we did at the height of the AIDS crisis. Instead, people are behaving compassionately and, despite the outliers we see in the news, accept inconveniences like hunkering down and wearing PPE because we recognize how deadly COVID-19 is. Fogged-up glasses are no big deal compared with the inability to breath.
Funny enough, I think we have to thank Princess Diana for this. One of her greatest legacies is that she humanized people with HIV/AIDS and help the world to recognize that the sick deserve our compassion even when the illness is scary.
The Undiscovered Country
The post-COVID workplace is the great unknown. While every employer is required to provide a safe workplace, for many industries compliance has consisted of little more than making sure exit routes are unlocked in case of fire. The closest thing to safety equipment I’ve used in 30 years of office work is dishwashing gloves. Tech employers that have never considered the risks of injury their employees face, now have to consider how to force social distancing in open, sit where you want, workplaces. Law firms have to consider the time a virus can survive on the coffee machine, or how frequently keyboards should be sanitized. The healthcare and construction industries are way ahead of the game since they’ve had to think about worker safety for more than a century.
Some of the changes employers need to make will be costly, inconvenient, or seemingly illogical and unnecessary. OSHA’s Guidance on Preparing Workplaces for COVID-19 has a lot of good information for how to minimize the risk of transmission in the workplace in general, but employers have to know to look for it and use it. One family member of mine, for example, works for an engineering firm that reopened its office last week. The owners do not think it is required to make any changes to ensure its employees are safe from COVID. My family member satisfies her own safety concerns with the knowledge that she spends most of the day alone in her office and the liberal use sanitizing wipes. Her employer, however, should be analyzing the workspace and how employees interact with each other to determine if temperature checks, masks, and an aggressive cleaning schedule should be implemented.
This knowledge gap leads us to believe that we will see an uptick in OSHA-related employment issues through the end of the year, as businesses reopen. Employees will want to know their legal rights before they file a complaint with OSHA, and some employers will retaliate against whistleblowers. Unless an employer does something remarkably stupid, I don’t expect the post-COVID workplace to be a breeding ground for class action lawsuits.
Overall, I’m optimistic about The Workplace of Tomorrow. I think employers will do their best to keep their employees safe even if it requires a little nudging, and people will continue to do what we can to avoid transmitting this deadly disease. We may not have flying cars and jetpacks, but we will have compassionate people who want to do the right thing. Not a bad trade-off.
If you would like more information about this article, please contact our employment attorneys at Carey & Associates, P.C. or send an email to firstname.lastname@example.org.
The U.S. Equal Employment Opportunity Commission has issued the following critical guidance that lawyers and judges are using today and you should as also. Please use the following link to the following information below reprinted in its entirety:
Technical Assistance Questions and Answers – Updated on May 5, 2020
- All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
- The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act.
- The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
- The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It has been updated as of March 19, 2020 to address examples and information regarding COVID-19; the new 2020 information appears in bold.
- The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:
A. Disability-Related Inquiries and Medical Exams
A.1. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? (3/17/20)
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
A.2. When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)
As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.
A.3. When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic? (3/17/20)
Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
A.4. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? (3/17/20)
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
A.5. When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty? (3/17/20)
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20)
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
B. Confidentiality of Medical Information
B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)
The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)
Yes. The employer needs to maintain the confidentiality of this information.
B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)
B.4. May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19? (4/9/20)
Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.
C. Hiring and Onboarding
C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (3/18/20)
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
C.2. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? (3/18/20)
Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
C.3. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? (3/18/20)
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
C.4. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? (3/18/20)
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
C.5. May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? (4/9/20)
No. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.
D. Reasonable Accommodation
In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
D.1. If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities, absent undue hardship, that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (4/9/20)
There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.
Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.
Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.
D.2. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)
Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.
As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.
D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)
Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.
D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)
An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.
D.5. During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability? (4/17/20)
Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).
D.6. During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? (4/17/20)
Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).
D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)
Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change. This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.
Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.
Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.
D.8. May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)
Yes. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.
D.9. Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)
Yes. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.
D.10. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? (4/17/20)
An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.
D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic? (4/17/20)
Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.
D.12. Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC? (4/23/20)
Yes. These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.
E. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics
E.1. What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? (4/9/20)
Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.
Practical anti-harassment tools provided by the EEOC for small businesses can be found here:
- Anti-harassment policy tips for small businesses
- Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
- checklists for employers who want to reduce and address harassment in the workplace; and,
- chart of risk factors that lead to harassment and appropriate responses.
E.2. Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? (4/17/20)
Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.
F. Furloughs and Layoffs
F.1. Under the EEOC’s laws, what waiver responsibilities apply when an employer is conducting layoffs? (4/9/20)
Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.
G. Return to Work
G.1. As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20)
The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.
For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.
Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)
An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).
However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.
G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? (5/5/20)
An employee – or a third party, such as an employee’s doctor – must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition). Individuals may request accommodation in conversation or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.
The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?
First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.
If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.
The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.
Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.
G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (5/5/20)
Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).
These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.
For further information please contact our Employment Lawyers at Carey & Associates P.C. at 203-255-4150 or email to email@example.com.
Even after weeks of quarantining and social distancing, we continue to read about alarmingly high statistics related to Covid-19 illnesses, hospitalizations and deaths. Regardless of which side of the political spectrum you are on, we can all appreciate the double edge sword of getting back to our normal way of living and returning to our jobs versus the risks of further spread and outbreaks. Sure, going back to work and getting a paycheck is the goal in theory, there are likely many of you who are scared in practice. Will I be safe at work? What precautions will my employer take to minimize risk? Will I be subject to having my temperature taken every day? Will I have increased exposure to the virus on my commute? I managed to avoid contracting the virus all this time and I am now fearful, I will get it by being around others at my workplace? These are all legitimate concerns. But now consider all of the above concerns if you are someone who is already disabled, someone who has an autoimmune disease, someone who is pregnant, someone who is older, someone who has an anxiety disorder, someone who is battling cancer. What rights and protections do these compromised employees have when told they need to report to the office on Monday AM? And how to do we all address their important needs?
WHAT IF I AM HEALTHY, BUT JUST SCARED?
The Americans with Disabilities Act (“ADA”) prevents employers from discriminating against employees with disabilities and continues to apply during the COVID-19 pandemic. The tricky part about establishing a case of disability discrimination is that the employee must be able to show that they were able to perform the essential functions of their jobs with or without reasonable accommodations. In other words, just because you have a disability, does not mean you are automatically guaranteed full protection from an adverse employment action as you still must be able to perform your essential job duties with reasonable accommodations made by your employer.
If you do not have any pre-existing disability, as defined by the ADA, and are simply scared to return to work or refuse to return to work, you can and might be terminated. After all, how can you perform your job functions if you are not willing or able to work? However, if you can demonstrate that you have developed an anxiety disorder related to COVID-19, you should pursue a reasonable accommodation request with your employer. For example, perhaps you have a compromised family member living at home, or perhaps you were already someone who dealt with anxiety and now find that your anxiety has increased because of COVID -19, or perhaps you have some other emotional or psychological issue that renders you less equipped to manage the stress and fears associated with this pandemic. In these situations, it may be the case that you now have a severe anxiety disorder, a disability which would entitle you to reasonable accommodations from your employer such as being afforded the opportunity to work from home, or to work in an area of the office that is partitioned or secluded from others, or to work on off hours when the office is less crowded. The accommodation requested must be reasonable and must not present any undue financial harm or obstacles to the employer.
Each employee’s situation will need to be evaluated on a case by case basis. If you are able to perform the essential functions of your job from home and if the employer will not suffer any undue hardship from your working from home (or any other accommodation requested), you might be able to reap the benefit of a “disability” protection under the ADA. Thus, if you are physically well, but are simply scared to return to work, there may be other factors at play that will entitle you to seek reasonable accommodations from your employer. Our employment attorneys will be able to help you navigate this, either in front of or behind the scenes.
IF I DO RETURN TO WORK, WHAT CAN I EXPECT?
While the ADA and state antidiscrimination laws continue to apply during the COVID-19 pandemic, these laws do not interfere with or prevent employers from following the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19. In other words, there will be a great deal of “gray area” regarding what your employer can and cannot do related to COVID-19, but here is some of what you may expect to find upon your return to work.
According to the recent guidelines, employers may screen employees (take temperature) who enter the workplace, and should rely on the CDC for guidance on symptoms associated with the disease. Employers may also administer COVID-19 tests to detect the presence of the virus before permitting employees to enter the workplace, as long as the testing is job-related and consistent with business necessity i.e. health care workers. If an employer requires all employees to have a daily temperature check before entering the workplace, the employer may keep a log of the results as long as the medical information is stored in a manner that maintains confidentiality and is apart from their personnel file, in accordance with the ADA. Despite the requirement of confidentiality, the employer may and should inform the work population if there has been a recent possible exposure or diagnosis and should require that employee to leave the workplace until they are symptom free. Lastly, an employer may require employees to wear protective gear such as masks and gloves and enforce infection control practices such as hand washing and social distancing protocols.
WHAT IF I AM SCARED TO RETURN TO WORK BECAUSE I AM DISABLED, COMPROMISED OR OTHERWISE AT HIGHER RISK?
The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, such a condition would fit the scenario of someone with a disability, as defined by the ADA, requesting a reasonable accommodation either to work from home or for additional safety precautions or adjustments at work. Apart from the specific medical conditions set forth by the CDC, there might be additional ones that constitute a disability as defined by the ADA and which therefore would entitle an employee to similar protection. Accommodations for those who request reduced contact with others due to a disability may include working from home as well as changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per the CDC guidelines or other accommodations that reduce chances of exposure. In addition, if you are disabled or otherwise compromised or at risk, other accommodations considered might be temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.
What protections are provided to employees who are not CDC identified or ADA disabled, but may feel they are otherwise compromised because they are pregnant or older. While pregnancy and age are not “disabilities” and do not fall under the ADA (however, in some states like Connecticut pregnancy is considered a disability), employers must still handle such COVID-19 related matters pursuant to the protections afforded under the discrimination laws, such as Title VII. Thus, while an employer may not be legally required to accommodate a pregnant employee related to COVID-19 (or otherwise), an employer may not lay off, furlough or terminate a pregnant employee solely based on the CDC guidance that pregnant women are more likely to experience severe symptoms or that they should be monitored. The same holds true for employees over the age of 40 or for employees who come from a national origin with a higher rate of COVID-19 cases.
In addition, while a pregnant or older employee may not enjoy the protections of the ADA requirement to reasonably accommodate, there is nothing to prevent that employee from discussing this with the employer and requesting to work from home where it is safer. Further, if the employer is providing accommodations such as working from home or more flexible job hours to their more “desirable” employees on the basis of their younger age or their not being pregnant, that might constitute discrimination and should be addressed.
Lastly, while pregnant or older employees who are at higher risk might not fit under the ADA, all employers are governed by the CDC and OSHA. Employers need to be OSHA compliant always and now more than ever. So, if you believe that your employer is placing you at a greater risk, you may put them on notice of such and demand that they follow the workplace safety guidelines and laws. Most importantly, if you complain about any violations to these laws, it is unlawful for your employer to retaliate against you in any way for doing so. If you believe that is happening to you or might happen to you, we advise you call our employment lawyers immediately.
If you would like more information about this article, please contact Carey & Associates, P.C. and speak to one of our Employment Attorneys. Please call 203-255-4150 or email to firstname.lastname@example.org.
By Fran Slusarz
The news is alarming. More than 760 residents of Connecticut nursing home have died from COVID-19. Nursing homes have underreported COVID-19 deaths in their facilities. Governor Ned Lamont enlisted medical personnel from the Connecticut National Guard and Army Reserve to perform site inspections with the Department of Public Health.
Become A Whistleblower
What does this mean for the healthcare workers and nursing home or assisted living facility employees? How do you stay safe and healthy, protect the population you serve, and protect your job? Answer: Become a Whistleblower.
State and Federal Whistleblower Laws
Connecticut and the federal government have several whistleblower protection laws designed to protect employees against retaliation if they report unlawful or unethical activity. These laws allow employees to follow their consciences and the law without losing their jobs, getting demoted, penalized, punished etc.
Occupational Health and Safety Act: You have a right to report unsafe or unhealthy working conditions to the federal Occupational Health and Safety Administration without fear of reprisal. This can include your employer’s failure to provide appropriate Personal Protective Equipment, or to properly sequester residents with COVID-19 from residents who are not infected.
Private Employers: Conn. Gen. Stat. § 31-51m protects employees of private employers from retaliation if the employee reports violations of state, federal, local law to a “public body.” Which public body depends upon the law being violated, but it is critical to recognize that this does not protect idle gossip or social media posts.
Public Employers and Contractors: Conn. Gen. Stat. § 4-61dd protects public employees and contractors against retaliation for reporting corruption, unethical practices, violations of law, abuse of power, waste, etc. The employee must make the report to the Auditors of Public Accounts.
It is critical to remember that these laws do not protect you for “going public” with the information. They only protect you when you report the activity to the proper public authority. Also, they provide a means of making you whole after the fact – i.e., after your employer already punished you for blowing the whistle. Many people find it useful to talk with an employment lawyer to work out the best strategy to avoid the punishment altogether.
For more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at email@example.com or call 203-255-4150.
A record 22 million people were laid off in one month since the coronavirus pandemic shut down large portions of the U.S. economy as of the week ending April 16, according to the Wall Street Journal. The estimated current employment rate is 13.5%. But were all those layoffs really due to the corona virus or did employers use the pandemic as cover to get rid of employees for other reasons, maybe unlawful reasons. This is the big question many unemployed Americans are now asking. Please review the following frequently asked questions and see which applies to you.
FAQ: Were you recently furloughed, laid off, demoted or terminated due to COVID, but your co-workers remain employed?
FAQ: Is your Employer still operating and profitable, yet you were laid off or had your compensation reduced due to a business decision to reduce costs or eliminate your job position?
FAQ: Were other younger employees retained, while you were furloughed, laid off, demoted or terminated?
FAQ: Were you laid off or terminated and not offered any severance or insufficient severance?
FAQ: Were your unemployment benefits interfered with?
FAQ: If you were unable to continue to work because you were sick, because a family member was sick or because you have young children at home, were you permitted to take FMLA leave or were you instantly laid off or terminated?
FAQ: Were you the only one furloughed, laid off, demoted or terminated or due to COVID, even though your Employer is calling it a “reduction in force”?
FAQ: Do you think your Employer was looking for an excuse to get rid of you?
If you answered yes to any of the above, your seemingly straightforward COVID-based termination may be unlawful. Unfortunately, the majority of Employees in the U.S. are “at-will”. This means that employees are at the absolute and arbitrary whim of their employers and they may be demoted, terminated or otherwise treated adversely for any reason or no reason at all. The exception to the anything goes rule of an at-will employment arrangement is that employees may NOT be treated unlawfully.
If you have recently suffered an adverse change in the terms and conditions of your employment amidst the COVID-19 crisis, you may still have viable claims against your employer for unlawful or wrongful treatment. COVID-19 is not and should not be a catch-all excuse or defense for employers’ bad behavior and even a crisis of this magnitude does not relieve employers of their obligation to treat employees lawfully at all times. If something does not feel right to you about the circumstances of your change in employment, it is prudent to speak to an employment attorney and review the fact pattern surrounding your work situation. It is in your best interest to discern whether your employer may be using COVID-19 as a sham or cover for otherwise unlawful behavior.
Unlawful or wrongful acts that may entitle an employee to monetary damages for claims against their employer will usually fit in one of three scenarios. Employers actions can be shown to be unlawful if they:
1) violate or fail to comply with any legislative mandate, act or
2) breach a valid contract or agreement; or
3) discriminate, harass or retaliate based on a protected class trait.
COVID-19 does not give employers a green light to violate laws, ignore contracts or discriminate against employees, and a termination under any one of those scenarios might be a wrongful one.
Scenario 1 – Statutory Violations:
Employers must abide by all existing laws and statutes, especially as they apply to the COVID-19 pandemic. It is the employers’ obligation to stay abreast of and comply with all new mandates imposed and legislation enacted in response to COVID-19, including, but not limited to enhanced FMLA, the CARES Act and the expansion to the Unemployment Compensation Act. This is in addition the existing laws that have long protected employees from discrimination and retaliation such as Pregnancy, Sex Harassment, Sexual Stereotype, Disability, Age, Whistle Blowing and Family Medical Leave, to name just a few. Thus, any analysis of whether your termination was lawful and proper should begin with a review of the facts relative to the controlling law and any revisions and updates to those laws. If you identify any facts in the events leading up to your termination that just do not seem right, you may have uncovered the hidden basis for your termination. For example, you got a good review last fall and received a bonus in January, but in March you were terminated without explanation. The small window between the January bonus and March termination should be closely examined for any facts supporting bogus performance issues, favorable treatment given to other employees and not you and replacement by coworker who is substantially younger and lesser qualified. The examples are endless, but you get the gist. See further discussion below.
Scenario 2 – Breach of Contract:
Even an at-will employment arrangement must be considered in light of any existing employment contracts or agreements between the employer and employee. In addition to or in the absence of a formal written employment contract, Courts may look to such documents as offer letters, on-boarding communications, employee handbooks, published severance plans and emails in order to demonstrate the existence of any enforceable covenants between the parties that may speak to such topics as causes for termination, compensation, bonus, healthcare, long term incentive compensation and severance. Thus, where a valid contract can be established as to any of your employment terms, your employer is bound by those terms and any deviation may be an unlawful breach for which you might be able to seek and recover damages. So, if you have been terminated or otherwise caused to separate from your employer, even if you are at-will and even amidst the COVID-19 crisis, it is imperative that you review all of your documents in order to discern that you are being treated lawfully according to the terms that were agreed upon and promised to you.
Scenario 3 (THIS IS THE BIGGIE) – Discrimination Claims:
Even if you are an at-will employee who was let go as a result of COVID-19, you may still have a claim for wrongful termination against your employer if their decision to let you go was at all based on discriminatory motives. Discrimination is unlawful and where an adverse act is taken against you because of such protected traits as your age, gender, pregnancy, race or national origin, disability, perceived disability, associational disability or sexual orientation, you may have legal claims against your Employer.
In the absence of direct evidence of discrimination or the smoking gun as we call it, discrimination can be shown if you are a member of the protected class and you were treated adversely (demoted, furloughed, laid off or terminated) under circumstances which give rise to an inference of discrimination, i.e. circumstances that show discrimination was the substantial motivating reason for the adverse act taken against you. The way an employer can defend itself against such a claim and rebut that inference is to show that there was a “legitimate” lawful reason for the termination, such as performance issues and other cause such as a business decision or reduction in force.
Certainly, you can all see where this is heading. COVID-19 and the related financial fallout provides your employer with the legitimate business reason it needs to “lawfully” terminate you. However, this cannot be accepted at face value. In fact, if you are able to show that the supposed legitimate reason relied on by employer was a sham or cover for discriminatory motives, you may prevail on your claims against them in a severance negotiation. There are surely many situations where an employer, especially during these challenging economic times, needs to make a tough business decision to lay off employees or institute a reduction of force, and where their decision to do so is legitimate and truthful.
Employer May Have Used Covid-19 As An Excuse to Fire You
However, there are also many instances where certain employees are selected within the context of a business decisions, based on discriminatory motives. For example, the company makes the “business decision” to lay off only the older employees, or only the female employees or only the pregnant employees. In addition, there might not even be any explicit or formal business decision to reduce costs or a effectuate a reduction in force, but your employer may still feel safe engaging in discriminatory behavior knowing or hoping that any terminations taking place now will be viewed as a necessary and legitimate, due to the Covid-19 business climate. Again, we cannot allow employers to use this catch-all defense to what maybe culpable and unacceptable discriminatory behavior. If you see something, say something to an employment attorney.
There is no doubt that both employers and employees are presently finding themselves in the most difficult and tenuous circumstances. However, employers, in response to COVID-19, seemingly have absolute power and new founded legitimacy to make discriminatorily targeted employment decisions against their at-will employees, under the guise of a business decision. And this is very concerning and unlawful. If you are in a protected class because you are over the age of 40 or fall into any of the other class of protected traits discussed herein, and have seen a change to your employment that you do not believe was made as the result of a good faith business decision, cost reduction, reduction in force in response to COVID-19, or other legitimate basis, we encourage you to speak to an employment attorney immediately. You may be entitled to reinstatement, severance or increased severance or settlement dollars relative to your discrimination claims for wrongful termination or other possible improper acts by your employer.
Carey & Associates, P.C. is currently providing complimentary consultations for potential new clients who are experiencing any employment related issues or believe they might have possible employment claims, as a result of the COVID -19 pandemic. Feel free to contact our office if you need help with that or any of your employment matters.
By Liz Swedock
COVID-19 is interrupting everyone’s lives these days, worldwide, and for many of us it is negatively impacting our jobs. Even while we are trying to achieve the work-from-home revolution, an unprecedented number of workers are experiencing frightening job stressors, including drastically reduced workload, changes in job responsibilities, dropped job responsibilities, and job loss. While not every negative impact can be fixed, there are a few legal protections that all workers should be aware of.
Is your job being impacted in a way that is unethical, or possibly illegal?
The sad reality is that the global recession is going to quickly motivate employers to start firing people. Businesses are panicked right now about their financial bottom line, and those salaries for all the people who aren’t in the office are looking daunting. While it may be legal for employers to lay people off due to purely financial concerns, all employees should be their own watchdog for any layoffs, terminations, demotions, or changes in responsibilities that appear to be unfairly – or unequally – happening.
What is unfair or unequal? Often the answer is discrimination. These days most people are aware of the protected classes of employees. They include older individuals (over 40), disabled individuals (physical or mental), gender, race, national origin, religion, and others. It is illegal for employers to single out any of these classes of individuals for negative treatment.
It’s often not obvious if an employee is being illegally discriminated against, which is why workers should arm themselves with what to look for. Sometimes illegal mistreatment is blatant, such as bullying and inappropriate remarks. But it can also be done through much more subtle means, like removal of responsibilities, being taken off projects or sidelined, exclusion from important meetings, or old-fashioned favoritism.
We all know what’s coming. As the economy is disrupted, companies are going to be forced to start eliminating employees. So, keep your eyes and ears open and watch out for anything that seems wrong. Did an entire project get cancelled or an entire team laid off? That kind of activity might be perfectly legal. However, does it seem like only the older employees or those with medical conditions are suffering the consequences? Has your multi-gendered and multi-national team suddenly become, well, a lot less diverse? These types of selective actions could be crossing a line into illegal territory.
Are you being denied rights that you are entitled to, particularly medical leave or accommodations?
The headlines are warning us that a huge percentage of the population should expect to catch COVID-19, a/k/a Coronavirus. This means that an even larger number of people can expect to be impacted by the virus, including if family members get sick.
If you or an immediate family member gets sick, you may be entitled to take medical leave while your job is protected – meaning, you cannot be demoted or fired. Federally, the Family and Medical Leave Act (FMLA) guarantees employees up to 12 weeks of leave per year if you’ve been an employee for at least one year and worked a minimum of 1,250 hours over the prior year. FMLA leave is unpaid, which means your employer is not required to pay you while you are on leave, but is required to hold your job for you until you return. Any negative impact on your job, such as by giving your work away or demoting you because you took leave, is illegal.
In Connecticut, this protection is expanded to 16 weeks of leave for any employee who works 1,000 hours during the prior year. In New York, since 2018, employees may be entitled to up to 10 weeks of paid family leave, up to 60% of their average weekly pay. This is one of the strongest protections in the country.
Can you take FMLA leave any time you or a family member gets sick? For a simple illness, such as a cold or the flu, the answer is usually no. However, you are entitled to leave for any “serious health condition,” which is defined as “an illness, injury, impairment, or physical or mental condition” which involves “inpatient care” or “continuing treatment by a health care provider.” Sound confusing? It is. Put quite simply, it’s not a black-and-white rule about when legal protections kick in for any individual medical situation. The bottom line is that if you, or a family member, has a medical problem that requires repeated, or ongoing, medical treatment, you probably qualify for protected leave.
It’s also important to know that individuals can take this medical leave in pieces, or “chunks.” This is called “intermittent leave.” What this means is that if you qualify for leave, but you can work sometimes, you can still be eligible for the protections provided under these laws, most importantly that you cannot be fired or demoted while utilizing your leave. This is extremely important for people who have ongoing medical conditions that require short periods of treatment.
Lastly, every employee with a medical issue should understand how the law defines “disability” and what an “accommodation” is. Legally speaking, disabilities can be temporary! You can be legally disabled if you have a medical condition that “substantially limits one or more major life activities,” and “major life activities” includes working. Of course, this means that many people who qualify for FMLA medical leave will also qualify under the law as disabled.
So, what protections do you have if you are legally disabled? A complete answer here would require far more space and time than I’m tackling in this article. However, the short answer is that your employer is required to cooperate with you so that you can do your job. In legal terms, this is called an “accommodation.” If you can do your job with a reasonable accommodation, then it is illegal for your employer to fire you, demote you, or do anything else to hurt your employment.
Just like with medical leave, it’s different for each person. However, an example how these legal systems work might be something like this – Person A contracts Coronavirus. Unfortunately, person A has the aggressive symptoms of the virus and needs to be hospitalized for a week, and then required to quarantine at home for a few more weeks. While they are hospitalized, Person A would be entitled to FMLA (and state) leave while they are in the hospital, and, most likely, while they have to self-quarantine at home. At the same time, Person A would most likely also qualified as disabled. This means Person A would have the following protections: the employer has to hold Person A’s job while person A is out, and, while Person A is recovering, the employer is required to offer Person A accommodations so that Person A can do Person A’s job. In other words, Person A cannot be fired, and must be given options to enable Person A to perform the job.
The takeaway here is to know your rights and stand up for yourself! Don’t expect your HR department to know the law or give you good advice. Even the most well intentioned employers or human resources people often don’t know how this process works, or what they are legally required to provide to you. You need to speak to an employment attorney to get the right advice, especially now during this Coronavirus pandemic.
If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at firstname.lastname@example.org.
|By Mark Carey
You know the man in the supermarket you saw today as you hurried for the last roll of TP… yes the one with the facemask and plastic gloves. Was he wearing the protective essentials because he was sick or because he was trying not to get the Coronavirus? Were you afraid to go near him? Should he wear a symbol (red or green) indicating he was infected or not?
The internal reaction you had was most likely a flight and fight response you could not suppress. But did you have enough information about this masked shopper to really render a rational conclusion that it was safe to pass? Probably not. He could have been shopping for an elderly couple, sitting in their car in front of the store, performing a good samaritan deed and wore the protective gear to ensure he was not infecting the food he was gathering. Would that make you feel different about this fellow?
What if the masked shopper lived with a family of five, all of whom were now contagious with the Coronavirus and the Dad, the only noninfected family member, was wearing the protective gear 24/7 in order to care for his family. Someone must still shop for food when nearly the entire family becomes ill. Would this make you feel different about him?
As we all move through these very uncertain and anxiety filled times, I ask you all to hold your judgments about each other until you can obtain more information, and then don’t judge. Maybe exchange a few words and see if the person is ok, instead of ignoring them. Or just express a warm “hello” or “good morning”. Everyone has a story or will have a story about how they are coping with this national tragedy, including the New Rochelle Man. We all will need more compassion and less bias in order to get through this.
According to a recently released Centers of Disease Control projection modeling, 160-214 million Americans are expected to contract the Coronavirus; you and I stand a good chance to become inflicted. When you do, you will immediately wonder how people will judge you and whether you were careless in your pre-infection days, going to work or a party with a cough or jumped on an airplane. The point is, no one knew they had the infection before it was too late, as no knows what the early stages of the Coronavirus feel like.
The Coronavirus does not discriminate based on sex, race, national origin, religious affiliation, sexual stereotype, age or political ideology. We are now ALL on the same team. Show a smile to a passerby, saw hello instead of looking down or away, volunteer to buy groceries or cook for the elderly, call your parents more often. Take care of the home team, because we ALL need you right now. Finally, do not forgot what expressing or receiving compassion feels like when this is all over, we need to continue to take care of our home team no matter our differences. Give a Shaka today.
If you need immediate assistance, please email our Employee Coronavirus Hotline and we will attempt respond to your questions. Mark Carey can be reached at 203-255-4150 or email@example.com.