UPDATE: Please note that this is a daily-changing situation. Since this article was written, on March 19, 2020, the EEOC has issued guidance with respect to the disability discrimination laws during a pandemic. That can be found here. Both the federal government and New York state have also passed new sick and family leave measures. NYS information can be found here. More information on federal paid leave can be found here.
The novel coronavirus (COVID-19) is all over the news and people are understandably apprehensive about the spread of the virus and what that can mean for their employment if they become ill.
Family and Medical Leave Act
The FMLA is the federal law that allows employees of larger (50 or more employees within 75 miles) private employers and employees of public entities to take up to 12 weeks of job protected leave to deal with their own or a close family member's serious health condition.
Coronavirus, however, is not necessarily a serious health condition within the meaning of the law. In fact, the common cold and flu are typically not serious health conditions under the FMLA unless they are accompanied by an inpatient hospital stay. Thankfully, the majority of coronavirus cases are mild. This is good news, of course, for an employee's general health and well-being, however may result in more complicated legal issues if employees are forced to stay home but do not fall under the serious health condition definition. A voluntary quarantine is an example of a scenario that is likely ambiguous under the law. This is because serious health conditions under the FMLA typically require incapacity plus a period of follow-up medical treatment. If there is no follow-up medical treatment, there may not be legally required job protection during a week or two out of work. Working remotely can be an option under these circumstances, but that is not conducive to all places of employment.
New York Paid Family Leave Law
Leave under FMLA is unpaid. New York has a paid family leave law that is applicable to the care of others. It does not apply to taking time off for one's own medical condition. This law works like Workers Compensation, where an employee makes a claim for benefits. Like the FMLA, it also includes job protection and protection from discrimination and retaliation.
The Disability Discrimination Laws
Individuals with compromised respiratory or immune systems are at greater risk for complications of the coronavirus. It is possible that an individual with a condition that falls within the definition of a disability may be able to request an accommodation of that disability to protect them from exposure to the coronavirus. Depending upon the circumstances, a reasonable accommodation can include working remotely or a leave of absence if working remotely is not possible.
Discrimination and Retaliation, Generally
Employers can get themselves into trouble when they do not have policies in place and when they do not apply their policies evenly. Discriminatory application of an employment policy can result in liability under applicable discrimination laws such as sex, race, etc.
Even if an employer is operating in accordance with the law, they should still be cautious about handling complaints of alleged violations. Many retaliation laws do not require the employer to have actually violated the law, but only that the employee has a good faith reasonable belief that the law is being violated.
Under the Americans With Disabilities Act, requesting an accommodation is protected activity. That means that, if an employee has a disability and they request accommodation, the employer may not retaliate. This is true even if the law does not ultimately require the accommodation to be given.
*This is certainly not an exhaustive list of employment issues that may arise relating to this outbreak, and is limited to some of our primary areas of practice. Employees may have additional protections under collective bargaining agreements, the Fair Labor Standards Act, or laws applicable to public employees.
*Nothing in this article is intended to constitute legal advice. All employment situations are unique and dependent upon their particular facts. If you feel you have been terminated in violation of the applicable employment laws, feel free to give us a call. We are happy to see if we can help.