Even though we are in the midst of the Covid-19 (coronavirus) pandemic, this does not mean that employers are free to trample on your rights to be free of discrimination. Given what we are hearing from our clients and colleagues, we believe that there are some employers out there who are using the pandemic as an opportunity to discriminate against their employees on account of their age and/or disability. So, we thought it important to get out some information to you regarding your employment rights during this pandemic.
COVID-19, Disability Discrimination & the Right to Reasonable Accommodation
- What if you’ve had COVID-19?: While having COVID-19, particularly if your case was short-term and mild, may not constitute a “disability” under the New Jersey Law Against Discrimination or the Americans with Disabilities Act, your employer nonetheless engages in illegal discrimination if it “regards” you as having a disability and decides to fire you (or refuses to call you back from a leave of absence or layoff) because of its view of your condition.
- What if someone in your family has had COVID-19? An employer violates the New Jersey Law Against Discrimination and the Americans with Disabilities Act if it fires you or refuses to call you back from layoff because someone in your family has been diagnosed with COVID-19.
- What if you have a disability (diabetes, heart disease, etc.) that makes you a higher risk of a getting a serious case of COVID-19? Your employer may not use its “concern” about your condition to fire you or refuse to call you back from furlough or layoff.
- What kinds of “reasonable accommodation” can you ask for if you have a disability? Employers are required under the law to provide “reasonable accommodation” to employees who have a disability. There are a number of kinds of reasonable accommodation to which you may be entitled during this pandemic:
- Remote work arrangements: Now that it has become clear that many kinds of work can be performed remotely (ZOOM, Skype, FaceTime), if you have a disability that might pose a particular danger if you are exposed in the workplace to COVID-19, you can request that your employer allow you to work from home, if doing so is reasonable. And, because you have a disability, you have that right even if your employer is insisting that others return to the workplace. That is what “reasonable accommodation” is all about!
- Leave of Absence: Under the law, a leave of absence is one form of reasonable accommodation. If you have a disability and are concerned about returning to work because of the risk of COVID-19 exposure, you can request to be placed on a leave of absence for a specified, limited period of time.
- Personal Protective Equipment (PPEs): Because of your pre-existing disability, you may be entitled to additional Personal Protective Equipment, or other forms of accommodation, beyond that being provided to non-disabled employees.
- If you are recalled from a layoff, can you refuse to return to work because of your concern that your pre-existing disability increases the dangers to you of getting COVID-19? If you have a pre-existing disability that increases the dangers to you if you were to contract COVID-19, your reluctance to go back into the workplace is certainly understandable. However, if you refuse to return to work and have been collecting unemployment, you may jeopardize your right to continue to collect those benefits. Nonetheless, there may be ways to position yourself to possibly protect your unemployment benefits, but here, the advice of a lawyer is critical.
COVID-19 & Age Discrimination
Based on what we have already heard from several clients, it is clear that employers, who may need to reduce their workforce because of lost business in the pandemic, are singling out older employees for layoff. In doing so, they are violating the prohibitions against age discrimination embodied in our state and federal laws. Here are some other issues you should also be aware of relating to age discrimination and COVID-19:
- Can you employer refuse to call you back from layoff because it fears that, because of your age, you are susceptible to COVID-19? The answer to that question is, “No.” Even if your employer is well-intentioned in its concern about your susceptibility to COVID-19, the law is clear that an employer cannot rely upon its “concerns” about its employees to discriminate against them.
- Can you refuse to return to work because of your concern that, as an older employee, the potential consequences of getting COVID-19 are especially serious? While you can refuse to return to work because of that concern, you are not protected by the laws against discrimination if you chose to do so. And, if you have been collecting unemployment, your refusal to return may well likely jeopardize your right to continue to collect. Nonetheless, there may be ways to position yourself to possibly protect your unemployment benefits, but here, the advice of a lawyer is critical.
One final word: Please keep in mind that the information provided above is only general in nature and is not intended as a substitute for your obtaining advice from lawyers at this Firm or elsewhere about how you should be handling your particular situation. To contact this Firm and schedule a case evaluation with workers’ discrimination lawyers, please call (856) 242-8491 or click on, “Help Us Understand Your Case,” appearing on the home page of this website, www.schallandbarasch.com