Posted September 28, 2020
Under the Americans with Disabilities Act (ADA), individuals with disabilities are protected from employment discrimination. However, the Act also protects those employees who are not disabled but are perceived as being so by their employer. The “perceived as disabled” component of the law has become a debated topic in employment law in the face of COVID-19-related lawsuits.
What are the standard ADA protections?
The ADA is controlled and enforced by the Equal Employment Opportunity Commission (EEOC) who has established the following guidelines for defining disability.
Disability is established if:
- A physical or mental condition substantially limits a major life activity
- A history of disability exists
- The person is subject to an adverse employment action and is believed to have a physical or mental impairment that is not transitory and minor
The third component has come into question in the COVID-19 era as some temporary health conditions such as pregnancy, age, or a preexisting/perceived condition may make an individual more susceptible to the contraction of the novel coronavirus.
When Perceived As Disabled Impacts Employment
Because of the factors at play with COVID-19, age, and health, the EEOC has issued guidance to employers on how to handle these claims.
For example, an employer cannot postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk for COVID-19. Though the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify postponing the start date or withdrawing a job offer.
However, an employer may discuss the possibility of telework or if the employee would like to postpone the start of the position.
The case Equal Employment Opportunity Commission v. STME, LLC, Nos. 18-11121, 18-12277 (11th Cir. Sep. 12, 2019), handled a similar issue when an employee was fired because her employer thought she may have contracted Ebola during a trip abroad. The Eleventh Circuit held that the employee was not “regarded as” having a disability. According to the appellate court, while the ADA prohibits discrimination because of a current (or past) perceived disability, this does not extend to a potential future disability that a healthy person may experience at a later time.
Knowing what precedent has stated means that as COVID-19 employment cases emerge, there may be conflicting viewpoints as to whether employees have been discriminated against or not.
However, that does not mean employees should stand back. If you have been discriminated against because of COVID-19, you have rights.
COVID-19 Perceived as Disabled Lawsuits
If you believe you have been discriminated against in the face of COVID-19, call us today. Our employee rights attorneys all over the nation are waiting to take your case.
Posted in Employee Rights.