The Coronavirus has been declared a Public Health Emergency of International Concern by the World Health Organization and there are already widespread reports of employers, employees, patients, customers, and others discriminating against Asian employees (or any other ethnicity where the country has a quarantined region) just because of an unsubstantiated belief that they may have the Coronavirus. This action is likely to violate the Civil Rights Act (Title VII) and possibly the Americans with Disabilities Act (“ADA”). Moreover, treating patients, customers and clients differently based on race, ethnicity and national origin may also run afoul of your obligations to third party payors and regulatory agencies. In the workplace, potential safety measures implicate several workplace laws that create potential legal difficulties for employers seeking to minimize the danger of the virus spreading, which must be based on the particular facts and circumstances faced by the employer at the time.
I. ADA and Other Discrimination Claims
A. Prohibited Actions Directed Toward Employees
The ADA and Connecticut law prohibits workplace discrimination against employees with disabilities. The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” The Coronavirus can substantially limit major life activities, although it is unlikely to fall under the ADA unless there are long-term, disabling effects for the individual. The ADA also protects employees who are “regarded as being disabled” by their employer, meaning that discrimination complaints may be brought under the ADA by an employee who does “not have any impairment, but [is] treated by an [employer] as having an impairment.” Many violations occurred under the ADA and similar laws in the late 1980s when employers, patients, and customers perceived an employee to have AIDS based solely on their sexual orientation.
In order to legally require fever screening, or other similar acts such as a quarantine, employers should be prepared to show that the screening is “job related and consistent with business necessity,” justified by a direct threat or recommended by the CDC or other local public health authority. Proof of a direct threat may be shown by an employee or a close relative having recently traveled to China, particularly in or near the Wuhan Province. However, employers must be careful to avoid employment decisions that are targeted only toward employees of certain races, ethnicities or national origins. For example, policies that directly or indirectly target only Asian employees (with no proof that they traveled to a country with a quarantined region) are likely to violate state and federal anti-discrimination laws.
Finally, 1) discharging an employee who the employer believes, without hard evidence, was exposed to the Coronavirus could result in costly litigation; and 2) complaints by an employee regarding a patient, customer or vendor who has discriminated against them or declined to interact with them (or be treated by an Asian employee or another employee that is from a country with a quarantined region) because of their race, ethnicity or national origin must be addressed promptly.
B. Prohibited Actions Directed Toward Patients, Clients and Others
It is also important to be aware of your potential obligations to patients, clients, customers and others in this context. Avoiding patients, clients and customers of certain races, ethnicities or national origins may violate provider agreements and insurance contracts with third party payors, including insurance companies, Medicare and Medicaid, among others. Moreover, such conduct could also lead to expensive litigation by the patient, client or customer and action by regulatory authorities such as the Department of Public Health, the Department of Social Services or the Department of Consumer Protection, among others.
C. Factual Proof of High-Risk Employee
If an employer has a good factual reason to suspect that an employee may be infected, but that employee does not wish to take leave, the employer may offer the employee the opportunity to work at home for the duration of the illness or require the employee to remain at home on a forced paid leave. Finally, when it is time for the employee to return to work, the employer may be able require the employee to provide a fitness for duty evaluation release from an appropriate physician under the appropriate circumstances and consistent with ADA requirements.
II. Family and Medical Leave
If they meet the requirements and are otherwise eligible, employees may be able to use leave under the federal or state Family and Medical Leave Act (“FMLA”) if they or their children or spouses have Coronavirus. In order to qualify for a FMLA leave, the condition would have to qualify as a serious health condition and the employee would have to satisfy the same notice and certification requirements as with any other medical leave. However, it is recommended that an employer avoid delay in addressing an employee’s FMLA request when there is an exposure risk and consider whether it is possible to obtain any necessary supporting information after the employee leaves the workplace.
If any of you would like any more information regarding this article, please do not hesitate to call or email Attorney John M. Letizia, Managing Partner, Letizia, Ambrose & Falls or Senior of Counsel, Phyllis M. Pari of Letizia, Ambrose & Falls at the following emails or phone number; firstname.lastname@example.org, email@example.com or (203) 787-7000.