Employee Discrimination and Retaliation

More than twenty-six (26) million Americans lost their employment as a result of the United States’ economic shutdown during the coronavirus pandemic.[1] In all likelihood, it will be many years, or even decades, before the damage COVID-19 has caused on the American workforce is fully realized. As nearly a decade’s worth of employment gains disappeared during the first several weeks of the pandemic, the United States’ job loss is on track with numbers during the Great Depression.[2] Foreseeably, the American judicial system will see an influx of claims by furloughed and terminated employees who feel that their termination was not strictly for economic reasons, but also for retaliatory or discriminatory ones. With this in mind, it is vital that employers understand the changes governing anti-discrimination legislation and the interrelationship of applicable federal and state laws that regulate the private business sector.

A.  Pandemic-related impact on longstanding federal laws and regulations.

The U.S. Equal Employment Opportunity Commission (“EEOC”) enforces federal anti-discrimination laws which are enumerated in Title VII of the Civil Rights Act, the Occupational Safety and Health Act (“OSH Act”), Americans with Disabilities Act (“ADA”), Rehabilitation Act, Age Discrimination in Employment Act, and Genetic Information Nondiscrimination Act.[3] Anti-discrimination laws require employers to provide a safe work environment without   discriminating against employees based on their disability or protected-class status. The pandemic has at least partially blurred the legal boundaries between employer responsibilities and employee privacy in their traditional application. What exactly constitutes a disability and actionable discrimination in the COVID?19 era is the debate shaping the next decade of employment law litigation.

Perhaps the most obvious defense to wrongful termination or retaliation claims would be that the layoff was not a result of discrimination but occurred due to the business’s economic hardships during the pandemic. It will likely be difficult to prove business interruption losses did not facilitate the need to furlough or terminate employees without additional evidence of targeted termination or discriminatory behavior.

Traditionally, an employee has the right to refuse to disclose personal medical information to his or her employer. If the business owner subsequently fires the employee for this refusal, then the employee has evidence of retaliation and wrongful termination. Yet in the 2020 pandemic era, the EEOC has announced this is not the case with COVID-19-related medical inquiries. Employers have a strong defense against wrongful termination claims when an employee refuses to cooperate in the employer’s medical screening protocols. The EEOC has adopted the CDC’s guidelines for workplace mitigation as legal authority for employers.[4]

            For example, an employer may defend itself against a wrongful termination claim from an ill employee who refuses to provide pertinent medical information or be medically screened when coming back to work.[5] During a pandemic, employers must mitigate COVID-19 workplace health concerns as outlined by the EEOC, ADA, and CDC.[6] As long as there is an active threat of the spread of  infection, ADA-covered employers have the right to ask employees who take off sick days from work for personal medical information.[7] Employees must disclose to an employer if they are experiencing symptoms of the pandemic virus such as a fever, cough, shortness of breath, etc.[8] If the employee refuses to disclose such information, there are grounds for termination without grounds for discrimination or retaliation.[9]

Additionally, employees who refuse to cooperate in workplace screening and safety protocols will likely forfeit their claims for wrongful termination or retaliation. During the COVID-19 pandemic, employers are allowed to medically screen employees by way of temperature checks, enforcement of proper hygiene practices, and social distancing in the workplace.[10] Employees who refuse to participate in the employer’s reasonable safety precautions will give cause for termination.[11] For instance, an employee who calls into work sick on a Friday and comes back to the office on Monday cannot refuse to answer the employer’s reasonable questions about his or her illness or current symptoms.[12] The employee also cannot refuse a temperature check or an order to socially distance from other employees or to leave the business until he or she is tested for the virus.[13] The ADA permits mandatory testing by employers as a workplace mitigation strategy as infected employees reentering the workplace are a direct threat to the health of their coworkers.[14] As such, employers can legally terminate an employee who refuses to participate in mandatory COVID-19 testing at the workplace on the grounds that the medical testing was “job related and consistent with business necessity.”[15] 

Another major COVID-19-related change to longstanding federal anti?discrimination law is an employer’s level of obligation to provide disabled employees with work-related accommodations.[16] Prior to the COVID-19 outbreak, it was held that the majority of accommodations for disabled employees were reasonable and affordable within the business’s overall resources and budget.[17] The pandemic’s economic impact on the United States has left many employers with significant difficulty or the inability to provide employees with many requested accommodations.[18] ADA guidelines now allow for COVID-19-related undue hardship considerations for employers rejecting the requests of a disabled employee.[19] For example, a vision-impaired employee who is teleworking due to the pandemic may not be granted his or her request for custom computer screens that are significantly more expensive than traditional monitors if the additional expense creates an undue hardship on the financially-strapped employer. It is the employer’s duty to work with the employee on reasonable alternatives to his or her request, but it is understood that financial constraints in times of crisis are reasonable grounds for denial of some requested accommodations without triggering discrimination.[20]

            Overall, federal anti-discrimination laws during the pandemic have expanded the employer’s powers to control and protect its workforce.[21] Employers have the power to require that employees wear protective gear and follow CDC-approved infection-control practices and terminate those who refuse to comply with reasonable COVID-19 safety measures.[22] The ADA also permits employers to make disability-related inquiries and conduct medical exams if there is a direct threat to an employee’s health based on the available objective medical evidence.[23] Even with the additional authority given to employers during the pandemic, there must be careful consideration as to what measures constitute reasonable workplace safety measures and unlawful disparate employee treatment based on protected-class physiognomies.[24] The distinction in treatment will ultimately determine an employer’s success in litigation.

B. Federal and state law interrelationships.

                  The average American is typically familiar with constitutional rights and federal laws which govern employee discrimination actions. As discussed in the section above, federal rules and regulations have adapted in consideration of a virus-produced national crisis. While pandemic considerations are paramount in discrimination and retaliation litigation, it is necessary to understand specific state laws which interrelate to federal employment legislation. 

Many states have adopted their own disability discrimination acts to supplement the federal Americans with Disabilities Act.[25] Some states refer to this legislation as their “Handicappers’ Civil Rights Act” or some variation of the name.[26] The state of Michigan has signed into law its own Handicappers’ Civil Rights Act (“HCRA”) which reads in part:

[An employer shall not] discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual's ability to perform the duties of a particular job or position.[27]

 

For an employee to successfully prove a prima facie case of discrimination against his or her employer under Michigan’s HCRA, it must be established that: (1) the plaintiff is "handicapped" as defined in the HCRA, (2) the handicap is unrelated to the plaintiff's ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute.[28]

            Additionally, states across the country have adopted into their public health codes several federal-based regulations which govern private sector industries. Depending upon the transmittable nature of the disease, an employee may be subject to lawful termination depending on his or her infection status. For example, the Michigan Department of Public Health adopted and incorporated the United States Public Health Service transmittable disease regulation which reads in part:

No person, while infected with a disease in a communicable form that can be transmitted by foods or who is a carrier of organisms that can cause such a disease or while afflicted with a boil, an infected wound, or an acute respiratory infection, shall work in a food service establishment in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons. [29]

 

Further, Michigan law authorizes in pertinent part:

 

(1) If the department or a local health department has reasonable cause to suspect possible disease transmission by an employee of a food service establishment, it may secure a morbidity history of the suspected employee and make any other investigation as may be deemed necessary.

(2) The department or a local health department may order an owner, operator, or person in charge of a food service establishment to do any of the following if a communicable disease is suspected or confirmed:

(a) Immediately exclude the employee from working in the food service establishment.

                            * * *

(c) Restrict the employee's service to some area of the food service establishment, as approved by the department or the local health department, where there is no danger of transmitting disease.

(d) Require or provide for adequate medical or laboratory examination of the employee and other employees and of their body discharges.

(3) The owner, operator, or person in charge of a food service establishment shall exclude from the food service establishment any employee with a suspected communicable disease.[30]

 

When this state regulation is applied during the coronavirus pandemic, a restaurant or food service  employer must prohibit all coronavirus-infected employees from working in any capacity in which they may handle food or come into contact with surfaces or objects which may touch food.[31] In essence, the Michigan Public Health Code authorizes an employer or health department to lawfully discriminate against an employee who has or is reasonably suspected of having COVID-19 or another contagious disease that may be transmitted through contact with food or surfaces.[32] Additionally, this provision does not trigger employee protection under Section 202(1)(b) of Michigan’s HCRA because the virus or “handicap” directly interferes with the employee’s ability to perform the duties specific to that employment.

            For the strongest defense against COVID-19 employee discrimination claims, a business owner’s legal counsel must be well versed in the state-specific adoptions and legislation governing their specific sector of business. Proper litigation and knowledge of federal and state law interrelationships may dramatically impact the probability of a successful defense verdict in the courtroom.

 

 

[1] Jeffry Bartash, Jobless claims jump another 4.4 million – 26 million Americans have lost their jobs to the coronavirus, MarketWatch (Apr. 23, 2020), https://www.marketwatch.com/story/jobless-claims-jump-another-44-million-25-million-americans-have-lost-their-jobs-to-the-coronavirus-2020-04-23.

[2] Heather Long, U.S. now has 22 million unemployed, wiping out a decade of job gains, Wash. Post (Apr. 16, 2020), https://www.washingtonpost.com/business/2020/04/16/unemployment-claims-coronavirus/.

[3] U.S. Equal Opp. Comm’n, What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus, https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm (last visited May 7, 2020).

[4] “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 [CDC guidelines].” Id.

[5] See generally Id.

[7] U.S. Equal Opp. Comm’n, What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus, https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm (last visited May 7, 2020).

[8] Id.

[9] See generally Id.

[10] Id.

[11] Id.

[12] U.S. Equal Opp. Comm’n, What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus, https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm (last visited May 7, 2020).

[13] The only exception to these requirements being if the employer was requesting a disabled employee to take precautions that were impossible to follow due to their disability (e.g. an employee with a latex allergy cannot be forced to wear latex gloves). Id.

[14] Id.

[15] Id.

[16] Id.

[18] Id.

[19] See generally Id.

[20] See Id.

[21] See generally Id.

[22] U.S. Equal Opp. Comm’n, What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus, https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm (last visited May 7, 2020). The caveat being that reasonable accommodations must be performed for disabled or protected class employees. For example, modified face masks for interpreters or others who directly communicate with a hearing-impaired employee who reads lips or modified rules based on an employee’s religious restrictions or beliefs.

[24] Id.

[26] See, e.g., Id.

[27] Id.

[28] Merillat v Mich. State Univ, 523 N.W.2d 802 (Mich. Ct. App. 1994).

[30] 1981 AACS, R 325.25909.

[31] Pursuant to § 12909(1) of the Michigan Public Health Code, the Michigan Department of Public Health adopted and incorporated within its rules the provisions of the 1976 recommendations of the United States Public Health Service found in the publication entitled "Food Service Sanitation Manual." 1981 AACS, R 325.25103(b), provision adopted is § 3-101.

[32] See generally Id.