The COVID-19 pandemic has greatly impacted public health and the economy. As a result, many employers have had to furlough, layoff, or reduce their employee’s hours. Some employers have legitimate reasons for taking these steps. On the other hand, the pandemic has been used as an excuse for some employers to terminate individuals illegally, and for discriminatory reasons – based on age, race, disability, sex, religion, or national origin.
During this pandemic, and even at a time of mass layoffs, it is actually more important for employers to protect employees and their jobs. Employees, too, should be aware that sometimes COVID-19 is being used as an excuse to cover up illegal employment practices.
Illegal Termination Practices
Although public health authorities have identified a person’s age as a significant risk factor in developing complications from Covid-19, the Age Discrimination in Employment Act (“ADEA”) prohibits discrimination against those age 40 years or older. There are a number of reasons why Employers may target older employees discriminatorily, including eliminating their higher salaries, trying to avoid health insurance costs, or avoiding the risk of an employee’s need for additional medical leave.
Employers may also believe stereotypes about older employees such as that they will be unable to adapt to telework; however, even if an employer takes an action for a “good reason” such as protecting the employee from an increased risk of severe illness and complications, an employer may still be in violation of the ADEA. Under the ADEA, employers are not permitted to involuntarily exclude individuals from the workplace based on the employee’s age, no matter how pure their intentions are.
COVID-19 presents a number of issues for individuals with disabilities, but many protections are in place under federal and state laws. These laws prohibit employment discrimination on the basis of a disability or a perceived disability. A disability can be a mental or physical impairment which substantially limits a major life activity. Whether a Covid-19 diagnosis would qualify as a disability likely depends on the effect it has on the individual.
Generally, for most cases, the ADA requires employers to offer reasonable accommodations to a disabled employee, as long as it does not present an undue burden on the employer. An employer must assess the need for a reasonable accommodation on a case by case basis. In light of the current pandemic, an influx of individuals will be requesting accommodations for underlying ADA-qualifying conditions. If an employee requests a reasonable accommodation, the employer has the obligation to asses that employee’s rights under the law, and, if appropriate, grant that employee’s request for a reasonable accommodation to minimize potential exposure to COVID-19. One option for an accommodation could be to offer the employee additional PPE or telework.
Retaliation for FFCRA or FMLA Leave
Another huge concern for employees during the pandemic is the use of leave, both Family and Medical Leave Act (“FMLA”) and Families First Coronavirus Response Act (“FFCRA”), and a fear of retaliation. The FFRCA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through December 31, 2020. Both the FMLA and the FFCRA contain anti-retaliation, and both prohibit employers from retaliating against employees for exercising their rights under these laws.
Legal Assistance for Illegal Termination of Employment
During the pandemic, as employees increasingly exercise their rights to take leave, some companies have struggled to implement effective policies or satisfy these legal requirements. It’s why both employers and employees need to make themselves aware of these Leave protections.
This is not an exclusive list of perils in the workplace for the employee, but are the ones that seem to be increasingly prevalent during these difficult times.
If you believe you have suffered from discrimination or retaliation due to a protected characteristic or activity, such as race, color, religion, national origin, age (over 40), sex, disability and FFCRA/FMLA retaliation and want to learn more about your rights, contact an attorney for further advice on your potential claim. Our attorneys are always available to hear your story and answer any other questions you may have regarding what we know to be this very difficult time.