*Katryna Santa Cruz
A recent statement by Equal Employment Opportunity Commission (EEOC) Chair Janet Dhillon addressed “reports of mistreatment and harassment of Asian Americans and other people of Asian descent” in the workplace amidst the COVID-19 pandemic.[1] Ms. Dhillon’s statement was prompted by the surge in hate crimes against Asian Americans based on the virus’s natural origin in China, including “micro-aggressions, workplace discrimination, business avoidance, harassment, threats and physical assault.”[2] National origin, of course, is a protected class under Title VII of the Civil Rights Acts of 1964[3] and thus, federal law forbids discrimination based on national origin when it relates to any aspect of employment, including hiring and firing, as well as harassment and retaliation.
Unfortunately, national origin is not the only protected class whose members are affected by the panic and misinformation surrounding COVID-19, and harassment is not the only unlawful employment practice that today’s employees are dealing with. The Centers for Disease Control and Prevention’s (CDC) early warning that older adults, sixty-five years and older, are at higher risk for contracting the virus[4] triggers the concern that older employees could also be at risk for job loss. Therefore, the Age Discrimination in Employment Act of 1967 (ADEA)[5]––protecting employees aged forty or older from unlawful employment practices––previously the only source of remedy for older employees before the COVID-19 pandemic, could not have a more confusing role to play after the virus’s global spread. Per CDC guidelines, older adults must be isolated from the workplace because they are older adults. Are the ADEA’s protections suspended during this crisis? Is protection under the ADEA a barrier to the safety of others? I predict that any court dealing with this issue will find that, even though an employee might suffer an adverse employment action because of their age—which meets the strict but-for causation standard required by the ADEA[6]—such action is not a violation of federal law because the action is taken for the safety of the employee and her co-workers. Even so, these questions are worth asking.
Another major player here is the Americans with Disabilities Act of 1990 (ADA),[7] which protects employees with disabilities from discrimination and requires employers to make reasonable accommodations to enable qualified individuals to perform their basic job duties.[8] Take for example, Tallahassee project engineer Katherine Webster, formerly employed by Tower Construction Management.[9] Ms. Webster has an autoimmune illness called interstitial cystitis and her nine-year old son suffers from diabetes and asthma—making them both immunocompromised and thus, at a higher risk for contracting COVID-19.[10] When Ms. Webster asked to work from home or have unpaid leave to avoid contracting the virus or infecting her son, her employer asked her to return her work equipment and then notified her that her assignment was over.[11] Note that Ms. Webster, an individual with a disability,[12] was not seeking an accommodation for the disability that she currently suffers from; she was seeking an accommodation to avoid contracting a virus that she has not tested positive for. Regrettably, the Eleventh Circuit recently held that “the terms of the ADA protect anyone who experiences discrimination because of a current, past, or perceived disability—not a potential future disability.”[13] Therefore, what was Tower Construction Management’s obligation? And more importantly, what was its responsibility? Before the spread of COVID-19, the Eleventh Circuit’s recent ruling would have been the chopping block to Ms. Webster’s claims. Now, not so much.[14]
In the face of a global pandemic, the ADA’s protection of employees with disabilities takes a backseat to the Occupational Safety and Health Act of 1970 (OSHA)[15] and a clearly defined limit known as the “direct threat.”[16] A “direct threat” is defined as “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”[17] Only those accommodations that do not pose an “undue hardship” on an employer are required; accommodations that result in significant difficulty or expense to the employer are not.[18] Employees at risk for contracting COVID-19 are considered potential direct threats to the health and safety of others; even so, reasonable accommodations must be made. But with the asymptomatic spread of the virus, which employees must be accommodated? Are the accommodations reasonable? Without knowing how long quarantine could last, how can an employer predict whether working from home will result in a significant difficulty or expense? Fortunately, for most American employees, the Families First Coronavirus Response Act, signed into law March 18, 2020, enforces paid leave rights when employees are subject to state or locally mandated isolation or quarantine, regardless of their actual medical status.[19]
Other workplace issues arising are medical privacy issues concerning whether employers can ask about employees’ medical status and even more intrusive, whether employers can ask about the medical status of employees’ family members or those with whom they live in close proximity. Before the COVID-19 pandemic, this would have been unheard of.[20] Yet, the recent EEOC guidelines on this issue clearly state that the ADA-mandated rules “continue to apply, but they do not interfere with or prevent employers from following the [CDC guidelines].”[21] Employers can request and maintain all medical information concerning an employee’s illness, take body temperatures, request a doctor’s note upon an employee’s return to the office, and most alarming, withdraw a job offer made to someone who subsequently contracts the virus.[22]
Nothing in this blog post is meant to downplay the importance of social distancing, quarantine, or the CDC guidelines, nor does this post ignore the fact that the ADA makes room for lawful discrimination in times of crisis. Employees should work from home, if possible, and employers should not be punished for placing the health and safety of all above the job security of one. However, these questions must be asked and these issues considered. The secondary effects of a global pandemic will be felt for long after a cure is found and the curve is flattened. While these issues cannot be resolved today, asking now could help answer tomorrow.
* J.D. Candidate, May 2020, Florida International University College of Law
[1] EEOC, Message from EEOC Chair Janet Dhillon on National Origin and Race Discrimination During the COVID-19 Outbreak, https://www.eeoc.gov/eeoc/newsroom/wysk/national_origin_race_discrimination_covid-19.cfm.
[2] See Caitlin Yoshiko Kandil, As Coronavirus Spreads, Asian Americans Report Spike in Racism, Cal. Health Rep. (Mar. 9, 2020), https://www.calhealthreport.org/2020/03/09/as-coronavirus-spreads-asian-americans-report-spike-in-racism/; see also Alexandra Kelley, Attacks on Asian Americans Skyrocket to 100 Per Day Amidst Coronavirus Pandemic, The Hill (Mar. 31, 2020), https://thehill.com/changing-america/respect/equality/490373-attacks-on-asian-americans-at-about-100-per-day-due-to.
[3] 42 U.S.C. § 2000e (2020).
[4] CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
[5] 29 U.S.C. § 623 (2020).
[6] Gross v. FBL Fin. Servs., 557 U.S. 167, 177 (2009).
[7] 42 U.S.C. § 12112 (2020).
[8] 42 U.S.C. §§ 12111–12117, 12201–12213 (2020).
[9] Nada Hassanein, Coronavirus and the Law: Tallahassee Woman Sues After Layoff Following Remote Work Request, Tallahassee Democrat (Apr. 1, 2020, 5:27 PM), https://www.tallahassee.com/story/news/2020/04/01/coronavirus-and-law-tallahassee-woman-sues-after-layoff-following-remote-work-request/5107069002/.
[10] CDC, supra note 4.
[11] Hassanein, supra note 9.
[12] EEOC, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, https://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm (explaining that any physiological disorder or condition affecting the immune system is a physical impairment qualifying as a disability under the ADA Amendments Act of 2008).
[13] EEOC v. STME, LLC, 938 F.3d 1305, 1316 (11th Cir. 2019).
[14] Author’s note: I do not suggest that Tower Construction Management was correct (or more importantly, acting lawfully) in terminating Ms. Webster. I use Ms. Webster’s claim to demonstrate how COVID-19 has turned what was once a somewhat clear-cut area of the law into murky waters that I predict will leave thousands of Americans without legal recourse.
[15] See U.S. Department of Labor, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf.
[16] See, e.g., Bragdon v. Abbott, 524 U.S. 624, 649 (1998).
[17] 29 C.F.R. § 1630.2(r); see also EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, https://www.eeoc.gov/facts/pandemic_flu.html#1.
[18] 42 U.S.C. § 12111(10); see also 29 C.F.R. § 1630.2(p) (including factors to consider when determining undue hardship); 29 C.F.R. pt. 1630 app. § 1630.2(p) (providing a more detailed analysis and examples of where a requested reasonable accommodation would pose an undue hardship).
[19] U.S. Department of Labor, Families First Coronavirus Response Act: Employer Paid Leave Requirements, Wage & Hour Division, https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.
[20] See generally 42 U.S.C.S. § 12112 (2020) (prohibiting required medical examinations and inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability); 42 U.S.C.S. § 2000ff-1 (2020) (prohibiting adverse employment action made on the basis of employees’ genetic information).
[21] EEOC, What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm (last updated Mar. 19, 2020).
[22] Id.