“Vaxed” is the New “Black”: Navigating Employer-Mandated Vaccinations: In 2021 there is a new status symbol that will determine who is “in” and who is “out” in many social situations. It’s not fashion or cars and it’s not your number of followers on social media. The new hot status for 2021 will be: “Vaxed” or “Un-Vaxed.”
As the FDA approved Covid-19 vaccines become more widely distributed over the next few months, the question of who is “Vaxed” and who is “Un-Vaxed” will start to take on tremendous importance. As new strains of Covid-19 spread we can easily imagine restaurants or stores with “Vaxed Only!” signs on their doors. One’s vaccination status could soon determine one’s access to schools, public conveyances, businesses, and churches. It may also determine where one can work.
As businesses and institutions grapple with the effects of the pandemic the wide availability of effective vaccines will force the issue of whether to require their employees to receive the vaccine in order to keep their jobs. (See related article Employer Mandated Covid-19 Vaccinations – Can They Do That?). For businesses in customer-facing industries like hospitality or food service, the question is pressing. Will anyone want to go to a barber that was not vaccinated? Wouldn’t customers feel safer eating at a restaurant where all employees are vaccinated? While many are awaiting the vaccine with anticipation, many have concerns about the vaccines and do not want them. Some are medically unable to receive a vaccine and others have personal or even religious objections to them. What right does an employee have to refuse an employer’s mandated Covid-19 vaccine? Will employees be fired for refusing? What can employer’s do to respond to valid and deeply held objections to a blanket vaccine requirement?
The basic rule is that in an employment at will situation an employer can require a vaccine as a condition of employment. Almost all employment in the US is employment at will. If an employee is a member of a union, then a vaccine mandate would be negotiated by the union, but would likely become a requirement at the end of that process. Even where an employee has an individually negotiated employment contract, those agreements often contain provisions that allow the employer to change company policies and job requirements, particularly for worker safety. Thus, in most all situations, an employer can require its workers to be vaccinated.
If it strikes you as outrageously unfair that employers can require you to undergo an intrusive medical procedure against your will and your only recourse is to give up your livelihood and sole means of support for you and your children, you are not alone. While most Americans are clamoring for this particular vaccine there is also widespread concern. Many women of child-bearing age have expressed objections based on the lack of longitudinal research on the effects of the vaccines on the reproductive system. Many people of color have expressed objections to the vaccine based on historic precedents of medical experimentation on minority populations. If the ability to force vaccinations on employees under threat of economic ruin seems to be too much power for employers, we can thank the “at will employment rule.” This is the great default principle of American employment law. It holds that employers can essentially do (or not do) anything they want to their employees provided they do not violate specific statutes. Under this rule, as long as they stay within the law, employers are a law unto themselves.
There are a few exceptions to this general rule allowing employer mandated vaccines. While the employment at will rule allows employers to require vaccines as a condition of employment, their vaccination policies must comply with the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other state and federal workplace laws. The question then becomes when do these laws prevent an employer’s vaccine requirement?
One limitation on an employer’s right to force vaccinations covers employees who cannot be vaccinated due to a disability. The ADA requires that if an employer’s vaccine requirement will force the termination of a worker who cannot be vaccinated due to a disability, the employer must show that the unvaccinated worker will pose a “direct threat” or will create a serious risk of “substantial harm” to the worker, co-workers, or the public. Only if that risk is significant and it cannot be eliminated or reduced by some reasonable accommodation can the disabled employee be terminated. The EEOC has provided some guidance on how employers should assess the potential risk of an unvaccinated employee including: assessing the duration, severity, likelihood, and imminence of the potential harm. If an accommodation such as masks, or a work from home option would reduce the risk, then the disabled employee should be accommodated.
While this exception is fairly easy to understand on paper, it might not be so easy to implement in the workplace. What if the only way to mitigate the risk and to accommodate the one disabled employee is to require all other employees and all customers to wear masks in the facility? Right now everyone expects to wear masks all the time anyway but what about when the mask restrictions could be lifted due to mass vaccinations? Will that still be a “reasonable accommodation?”
A second exception to the employer’s right to force vaccinations on their workers is carved out in Title VII. An employer must accommodate an employee’s sincerely held religious objection to a vaccine unless the accommodation causes “undue hardship” to the employer. Sounds fair enough. The trouble with this rule is that the definition of “undue hardship” is any accommodation that has more than a “de minimis” or “absolutely minimal” cost or burden to an employer. How will courts apply this rule in the example above, where a single employee with a religious accommodation can continue to work only if all employees and customers are provided PPE? As this example suggests, the “de minimis” standard could be very difficult to meet in the workplace.
While the EEOC is trying to develop a set of workable guidelines that accommodates employee’s rights under existing laws like the ADA and Title VII, there are no accommodations available for the employee who objects to vaccination based on personal concerns like racial disparities or lack of research on fertility effects. For most workers who object to vaccination for a host of personal reasons, there will be no option for dissent. “Shoot up and shut up” will be the rule for many.
There are times when public safety and the protection of our economy should take precedence over personal choice. I personally intend to get vaccinated as soon as possible whether my employer wants me to or not. (Carey & Associates, P.C. will leave it to the employee’s discretion about whether to vaccinate or not). It is important however, to consider the power dynamics and the broad implications of the employment at will rule when it invades the province of our bodily integrity and personal conscience. In a world where politicians are willing to substitute facts for politically convenient fantasies, it is easy to imagine these power dynamics leading to much more extensive invasions of personal choice. In the short term at least, “Vaxed” is likely to be the new “Black.”
“Vaxed” is the New “Black”: Navigating Employer-Mandated Vaccinations: If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. You can also send an email to firstname.lastname@example.org or call (203) 255-4150. If you liked this article, please leave us a review HERE.
Podcast: Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19: 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?
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“In science, computing, and engineering, a ‘black box’ is a device, system or object which can be viewed in terms of its inputs and outputs…without any knowledge of its internal workings. Its implementation is ‘opaque’ ([i.e.] black). Almost anything might be referred to as a black box: a transistor, an engine, an algorithm, the human brain, an institution or government.” (https://en.wikipedia.org/wiki/Black_box).
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?
Let’s see if we can figure out what is going on inside the black box. As with all black box analysis we are going to examine the “inputs” and “outputs” to determine what unseen principle or byzantine process is going on inside the box itself. The “inputs” will be specific request for accommodation scenarios and the “outputs” will be the Equal Employment Opportunity Commission’s (“EEOC”) guidelines and recommendations for ADA requests for accommodation during Coivid-19.
First, let’s look at the box itself. The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic. Under the ADA, “reasonable accommodations” are adjustments or modifications in the facilities, operations, or equipment provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an “undue hardship,” on the employer. “Undue hardship” means “significant difficulty or expense.” That is the basic reasonable accommodation rule under the ADA.
An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that will not impose an undue hardship. But how is that determination made by the employer? The not so simple answer is: “Through the ‘interactive process.’” We have now entered the black box.
The “interactive process”, as described above, is the information gathering and discussion process between the employee requesting the disability accommodation and the employer. It begins when a request for accommodation is made by an employee and the employer responds. Where it ends is more difficult to pinpoint. This process may continue or stop and resume again when circumstances change. It should really be thought of as an on-going process. Let’s look at some “inputs” and “outputs” to see how the “interactive process” works:
› If my job requires me to be on-site and I have a preexisting medical condition that makes me especially vulnerable to Covid-19, am I entitled to reasonable accommodations under the ADA?
Possibly. The threshold question is whether your condition is a disability as defined by the ADA. If the condition is not a disability under the ADA you might not be entitled to accommodation even if you are at higher risk. The ADA defines a “disability” as “a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.” When requesting an accommodation, the employee should ask his or her physician whether the condition in question meets that definition. Some physical and mental conditions which meet the definition include but are not limited to: heart disease, diabetes, lung disease, compromised immunity, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder. In this example, the employer would begin the interactive process by asking questions and/or requesting medical documentation from the employee to determine whether the condition for which the employee is requesting an accommodation is an ADA disability. If it is not, then the process will likely end with a denial. If the condition is in fact an ADA disability then the interactive process continues with an exploration of the accommodations possible and available.
›If my job is on-site and I have a preexisting medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19, how do I know what accommodations I can get?
The type of accommodations needed are usually proposed initially by the employee or her physician. The interactive process continues here as the employer then asks questions such as: (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 her position (that is, the fundamental job duties). Some recommended Covid-19 accommodations to reduce exposure include without limitation: 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; providing personal protective equipment (PPE); 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. Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances.
›Can my employer just say that my requested accommodations pose an “undue hardship,” and not engage in any sort of process?
The employer may not simply deny a requested accommodation without engaging in the interactive process. The employer is required to actually “discuss” the accommodations with the employee. If a particular requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that does not involve undue hardship.( In discussing accommodation requests, the EEOC recommends that employers and employees 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.) The discussion of proposed accommodations and the proposal of alternatives is part of the required process. Further, a general denial by an employer is insufficient. Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. The employer must consider certain factors such as:
the nature and cost of the accommodation needed;
the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
the impact of the accommodation on the operation of the facility.
If the employer cannot answer questions regarding these topics, it is likely that the interactive process was not properly conducted.
›When is an accommodation too costly? How can my employer decide? Won’t employers just say anything that costs money is too costly?
“Undue hardship” is determined based on the net cost to the employer. Employers are required to actually calculate costs and to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. Thus, an employer is not only required to assess the cost-impact of a requested accommodation on the organization but must also determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. If only a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if she or he will pay the difference. If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation. Again, if the employer is engaging in the interactive process in good faith, these points will be considered and discussed with the employee.
›Besides providing many new reasons for needing accommodations, how does Covid-19 affect the interactive process with my employer, if at all?
The interactive process is largely about assessing the relative burden of a particular accommodation on the employer’s operation. Therefore it makes sense that the financial, economic, and situational conditions affecting the workplace due to Covid-19 will factor into that calculus. In some cases, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one in the new conditions imposed by Covid-19. Further, an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations considering the facts of the particular workplace. For example, it may be more difficult now to conduct a needs assessment or to acquire certain PPE items. Covid-19 could cause “excusable delays” in the interactive process. The loss of some or all of an employer’s income stream because of the pandemic may affect the calculation of whether an accommodation is too costly. The physical layout of the facility may have changed due to Covid-19 safety measures, and a particular accommodation might not be feasible. Temporary accommodations might be granted and later changed or withdrawn as circumstances change. It might be easier to accommodate a request for telework or more difficult to obtain a temporary worker to take on marginal job duties. These complex factors make the interactive process more important than ever. Flexibility, creativity, and effort are needed to come up with workable accommodations in this challenging environment. The EEOC advises that there are many no-cost or very low-cost accommodations that can be found to assist those struggling to work during Covid-19.
›If I have a family member who has a medical condition (which is an ADA disability) that makes him/her especially vulnerable to Covid-19, does the ADA provide accommodations for me to reduce the risk of indirectly exposing my family member?
No. While the ADA does prohibit discrimination based on one’s association with an individual with a disability, that protection is limited to disparate treatment or actual harassment. The ADA does not require employers to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. Of course, an employer is free to provide such an accommodation if it chooses. While caregivers and family members of individuals with disabilities are not entitled to accommodations under the ADA, they may be entitled to leave under the federal Family and Medical Leave Act (FMLA) or the federal Families First Coronavirus Response Act. If an employee’s close family member has Covid-19, the FMLA could provide leave to care for that family member.
›If I have a medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19 and my employer allowed me (and others) to work remotely for a period of time, does my employer automatically have to grant me telework as a reasonable accommodation when the company returns to on-site work?
Not necessarily. Whenever an accommodation is requested the employer can engage in the interactive process and determine whether there is a disability related reason for it and whether there is an undue hardship under the circumstances. This is a fact-specific inquiry that can be made at the time the accommodation is requested. If the employee’s disability does not cause a limitation that will be relieved by telework, then it need not be granted. Further, if the employee’s disability related limitation can be addressed with another accommodation then that accommodation may be provided instead of telework. Additionally, if the telework arrangement requires the employer to excuse the employee from certain essential functions of the job, the employer need not excuse that function even if it did so voluntarily for a period of time out of necessity. The ADA does not require an employer to eliminate an essential function of a position as an accommodation. However, if the disability related limitation would be removed by telework and all essential functions of the employee’s job were performed satisfactorily during the telework period, then the period of telework could be seen as an experiment that demonstrates that the accommodation was effective and satisfies all job requirements. The interactive process must be flexible, cooperative, and truly interactive to determine what accommodations will work for employer and employee.
Based on our “black box” analysis here, it seems that the “unseen mechanism” that makes the interactive process work is some combination of cooperation, communication, and flexibility. While the specific results may vary widely depending on the factors mentioned here, it is clear that in the age of Covid-19, obtaining the right output from the “black box” that is the ADA interactive process requires a lot of input from all involved.
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
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:
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.
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.
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.
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.
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 athttps://askjan.org/topics/COVID-19.cfm.
D.1. If a job may only be performed at the workplace, are there reasonable accommodationsfor individuals with disabilities, absentundue 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.
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:
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)
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)
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.
Scared To Return To Work During Covid-19? 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.
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.
Protecting Your Job During Coronavirus Two Things Employees Should Look Out For. 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.
Protecting Your Job During Coronavirus Two Things Employees Should Look Out For. 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 email@example.com.
Uncovering Your Bias About People Infected By the Coronavirus. 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.
Your Job and the Coronavirus 5 Things To Know and Protect Yourself
The issue is not if the Coronavirus will impact your employment but when it will. If you contract the Coronavirus or you are quarantined due to a family member having the illness, you need to know the following important pieces of information to protect yourself.
1. Having the Coronavirus is a Disability and You Are Entitled to Protections
If you are diagnosed with the Coronavirus, you will have a physical disability pursuant to state and federal law. Generally, any impairment of your major life functions is considered a disability and it appears that the Coronavirus is so severe it can become fatal in a short period of time. An employer who discriminates against an employee who contracts the Coronavirus may be liable under disability laws. Also, you should request a reasonable accommodation for a disability leave of absence to quarantine yourself and seek medical assistance. Your employer has an obligation to discuss your accommodation, albeit after they order you not to come to the office until you recover.
State and federal disability laws also protect employees who are “regarded as” having the Coronavirus but have not been diagnosed yet or do not even have the virus. The medical community has only indicated the early signs of the Coronavirus mimic flu symptoms and you will not know which illness you have until you have been tested. The idea here is that disability laws seek to address discriminatory biases held by employers who speculate a person has a disability but are unsure about the truth of the employee’s medical situation.
Finally, the disability laws also protect employees “associated with” individual family members who have the Coronavirus. If you are fired out of fear that your family member infected you, you are protected against discrimination and unlawful termination, even though you never contracted the illness.
2. You May Have Rights Pursuant to the Family Medical Leave Act
If you contract the Coronavirus, and you have worked a significant number of hours in the past year, you may be entitled to take time off, paid in some states like New York and soon Connecticut. You will be entitled to 12 weeks or more and your job will be protected. However, you have to come back to work before the expiration of the FMLA leave or your employer will terminate you. This leave of absence overlaps with the disability accommodation request above. A good an employment lawyer will know how to navigate this for you.
3. You May Be Entitled to Short Term and Long Term Disability Benefits
You may also be entitled to paid time off under your employer’s short term and long term disability benefits plan. Again, this disability leave of absence overlaps with the disability and FMLA leaves of absence. In order to qualify for benefits, you need to apply for them through your Human Resources Department and demonstrate, via supporting medical documentation, you are totally disabled. Given the severity of the Coronavirus, you will certainly qualify as having a total disability. The grey area will be in those cases where the symptoms of the virus are not as severe and you recover within a matter of weeks. If you recover, and hopefully you do, the STD and LTD benefits will only be paid for the period of your disability. You would need to return to work after your recovery, but an employment lawyer will guide you through this process.
4. You May Be Entitled to Workers Compensation
If and only if you contract the Coronavirus while at work, can you file a claim for workers’ compensation benefits. This type of claim takes longer to collect from the insurer, but more importantly, it may bar you from recovery under other state laws but not federal laws. Federal laws will always preempt state law claims.
5. You May Be Entitled To Severance If You Are Terminated
If you are terminated for contracting the Coronavirus, regarded as having the virus or associated with a family member who has it, you should consider hiring an employment attorney to attempt to negotiate a severance package with your employer. Your employer may already have a severance plan which pays out benefits, i.e. weeks of salary for years of service, and you will need to sign a waiver and release of claims, aka settlement agreement. An employer will want to avoid any connection to accusations that it fired an employee for having the Coronavirus; it just does not seem fair and the right thing to do.
Your Job and the Coronavirus 5 Things To Know and Protect Yourself. If you would like more information about this topic and need to speak to an employment attorney, please contact firstname.lastname@example.org or call Carey & Associates, P.C. at 203-255-4150.
Several Great Reasons to Get Rid of the Employment At-Will Rule. What do you mean I can be fired for any reason or no reason at all? Who made up this rule? Why do I have to follow the employment at-will doctrine? Well, you don’t and there are several reasons companies and employees should shift to a modified approach that satisfies the expectations of both the employer and the employee.
I can honestly say that over the past twenty-three years handling employment law cases for both executives and employees, my clients are really confused and bewildered by the employment at-will rule and the significant financial impact it creates when employers decide to let them go. Many clients always state they understand the basic rule that they can be fired at any time and they can leave at any time. But beyond that they know absolutely nothing about why the rule came into being or more importantly how they can negotiate around it. When a termination occurs the adverse impact is clear, the uncertainty of the break in career trajectory and financial resources.
At the executive level, I routinely negotiate employment contracts that provide for termination “for cause” and “termination for good reason” by the executive. This is standard in the industry at the executive level. However, I do confront the hybrid cases, where the employer “shoves” in the provision identified as “termination for any reason”. Well, that sounds like the employment at-will rule doesn’t it, because it is. Enter the LeBron James Rule. (I made up this rule). When negotiating employment contracts, employees needs to identify their leverage factor; it is what makes the employer throw money or equity in order to induce the hire. LeBron James can write his own ticket to work wherever he finds the highest bidder, and he can demand the termination for cause and good reason provision with a severance payout. Find your leverage and do not be shy about asserting it.
Well you might say not everyone is as fortunate as LeBron. I disagree and this is what has bugged me for many years. We all too often knee jerk react and accept this stupid and ill-conceived rule that your employment is as good as the last minute or hour you just worked. Some say, just be grateful you have your job etc. Give me a break! There is a new way to handle this.
I propose getting rid of the employment at-will rule and replacing it with the modified form we see in executive employment contracts. Specifically, employees can be fired for cause or terminated by the employee for good reason. If the good reason event occurs, then the employer pays a severance amount to take care of some of the financial issues related to your transition to new employment. If you land a job, your severance stops, as this is fair in an economic theory way of thinking. “Termination for cause” means you violated the law and company policies. “Termination for good reason” means the employer materially changed your title, salary, reporting structure, location of your office etc.
Now here are several positive effects of eliminating the employment at-will rule based on my research into this issue.
Management vs. Everybody: Eliminating the employment at-will rule will get rid of the large divide between management and employees. Literally, this is the trust divide. If you scare employees into believing they can be fired any time, management is not creating a loyal and trusting environment that spurs innovation and creativity which will push the company forward in profound economic ways. Employers want employees to be focused on their work, but this rule is utterly distracting and frankly non-motivating. The rule erodes any semblance of entrepreneurial creativity among the team. Employers need to seriously rethink this one.
HR vs. Everybody: Honestly, did you really believe the Human Resources Department was there to help you. I make it my mission to point this out to every client I have. They (HR) have a duty of loyalty to the employer and have absolutely no interest in doing what’s right for you. By eliminating the employment at-will rule, employees will closer align themselves with HR and HR will do a better job of “caring” for the very employees that make up the company; without employees you have no company. Where did all those employers go astray?
Eliminating Fiefdoms: Does your boss have their favorites? Do they hire from the last place of employment? Are there any “brown-nosers” in the team who believe the only way to the top is to “work it” what ever that means to you. It’s childish and it’s irritating to say the least. You know what I am referring to. Why do other employees do this and why do supervisors encourage it? Eliminating the employment at-will rule will breed meritocracy, but not the type Bridgewater Associates thinks they are creating. Employees will begin to feel compassion for their coworkers and work more closely as a team or family, instead of putting a knife in their back at work. Employees will work with management for the company common good; all will prosper together not just the few.
Reducing Discrimination: If you create trust, honesty, transparency and vulnerability, then you create lasting relationships where employees want to stay and work. Employment discrimination bias arises from many reasons, but my theory is that if you get rid of the employment at-will rule you will gut the walls that employees build in their work environments with the sole goal of getting ahead. Think about it. If you say something or do something negative about another person to make yourself look better in the eyes of your employer, you will do it to get ahead. That negative comment or idea could be motivated based on gender, age, race, religion or manipulation like seeking sexual favors in exchange for career advancement. We need a sea change to course correct our current direction. The status quo just doesn’t work anymore; although it may work for employment attorneys like myself as we are very busy policing this garbage. If you see something, say something. Have the courage to speak out, you will be protected.
Finally, here is my shout out to older employees. If you are an older employee “we honor your wisdom and experience, you are worth every penny we pay you”. Employees who are in their fifties and even sixties are well paid because they have many years of experience to offer, more than someone twenty years their younger. I say we should keep them on board and ignore the bottom-line cost issues and focus on their economic impact these older wiser employees can create for the company. Management must stop terminating the baby boomers because the economic argument that fosters this decision making is not financially sound and never was to begin with. It’s like a bad drug addiction. Remember, wisdom still is a virtue for a reason.
When will this change occur? When management realizes they can make greater revenue multiples by providing better job security. They will have to stop listening to management side defense employment counsel who banter incessantly to maintain the employment at-will rule for every client. The world isn’t flat, or at least until someone very smart said it wasn’t. Same goes here, management should adopt this new rule and maybe just maybe they will convince themselves that #employees matter.
Several Great Reasons to Get Rid of the Employment At-Will Rule. If you want more information about employment law issues, please feel free to contact Mark Carey, Carey & Associates, P.C., at email@example.com or call the office at 203-984-5536.