Employment Law Issues Related To Coronavirus
Daniel E. Harrell is a Shareholder and Chair of the firm’s General Litigation department.
Daniel’s practice focuses primarily on labor and employment litigation and counseling, and non-compete and restrictive covenant litigation.
PENSACOLA (March 12, 2020) –
The recent scare over the spread of COVID-19 (“coronavirus”) has resulted in employers having numerous questions regarding the legal implications for managing their workforce through this potential health pandemic. While there are a number of workforce and employee relations issues that do not necessarily implicate specific employment laws, there are several laws that directly are implicated, and employers must be aware of these issues and appropriately consider how they should navigate through this crisis. Below is a brief summary of issues relative to the Family and Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), and Title VII of the Civil Rights Act (“Title VII”).
FMLA Issues
The FMLA provides eligible employees with 12 weeks of unpaid leave over a 12-month period. As coronavirus concerns have increased, questions regarding how employees can utilize FMLA leave have arisen. Obviously, if an eligible employee contracts the coronavirus and is receiving continuing treatment for such, that employee likely will qualify for FMLA leave. Likewise, an employee who has a dependent family member (e.g., spouse or child) who contracts the virus and needs assistance also likely will qualify for FMLA leave. Importantly, though, FMLA leave is not an option for an employee who has concerns about contracting the virus, but has not been exposed.
Employers who receive FMLA requests related to coronavirus concerns should proceed cautiously at this stage. Likewise, employers must remain aware of their affirmative obligation to discuss FMLA rights with employees who may have a qualifying condition. Employers should view the FMLA as a tool to help them address employee health issues, not an unnecessary obligation. Accordingly, employers should assess all FMLA or leave requests regardless of whether the underlying basis for the request initially may seem invalid or unsupportable. Furthermore, employers should maintain open lines of communication with employees who may be dealing with qualifying conditions and provide these employees with appropriate notices of their rights. Finally, to the extent that employers have concerns regarding the applicability of the FMLA in these situations, employers should maintain contact with their legal counsel to ensure that they take appropriate action.
ADA Issues
Under the Americans with Disabilities Act (“ADA”), an employer may not discriminate against an employee who suffers from a disability, which is defined as a physical or mental impairment that substantially limits one or more major activities. Upon first impression, it seems unlikely that an employee who has contracted the coronavirus necessarily suffers from a disability under the ADA. However, if the employee can legitimately demonstrate that a major life activity (e.g., breathing, walking, sleeping, etc.) is substantially impacted by the disease, the ADA may require the employer to make an accommodation for that employee. At this stage, employers should remember that, when an employee makes a request for an accommodation, the employer is required to engage in the interactive process—simply stated, the employer must take reasonable efforts to determine whether an accommodation is available that will allow the employee to continue working despite suffering from their disability.
If the coronavirus diagnoses continue to increase, many employers may begin to see requests for accommodations, including, among others, isolated work spaces or remote working capabilities. An additional ADA issue of note may be requests from individuals with current disabilities (e.g., COPD, asthma, etc.) for accommodations to avoid potential exposure. At this stage, employers must take each request seriously and conduct appropriate due diligence to determine whether an accommodation is required and can be provided. Failure to do so may result in inadvertent liability for the employer under the ADA. Again, to ensure compliance with the ADA, employers should maintain contact with their legal counsel to ensure that they take appropriate action.
Discrimination Issues
Title VII of the Civil Rights Act (“Title VII”) prevents discrimination on the basis of race, gender or national origin. While these issues are not as widely implicated by the coronavirus concerns as issues under the FMLA or ADA, employers should be aware of potential pitfalls. Because coronavirus has affected other parts of the world more rapidly than in the United States, there is a potential for national origin bias or prejudice in the workforce. For example, simply because an employee is of Chinese or Italian descent does not mean they have any greater likelihood of exposure to coronavirus than any other employee. Employers should be diligent in making sure that such any biases or prejudices related to national origin, or even race, are dispelled quickly. Employers should immediately address any complaints regarding such potential biases to avoid the creation of a hostile work environment.
Conclusion
Employers will continue to face concerns over the coronavirus pandemic, issues which continue to evolve on a daily basis. Here, at Clark Partington, we continue to monitor these issues and are always available to help our clients address their concerns as they develop.
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Clark Partington’s employment team is equipped to answer questions related to your specific situation. With offices in Pensacola, Destin, Santa Rosa Beach, Tallahassee, and Orange Beach (Alabama), we are a full-service firm, serving the Gulf Coast. To reach one of Clark Partington’s employment attorneys, contact Daniel Harrell at (850) 208-7033 or dharrell@clarkpartington.com.
About Clark Partington:
Clark Partington is the largest business focused firm in the Florida panhandle with offices in Pensacola, Destin, Grayton Beach & Tallahassee. The firm also maintains a presence in South Alabama with an Orange Beach office. Since 1976 Clark Partington has grown to over forty lawyers and has served the people and businesses of Florida through an innovative and collaborative approach to practicing law. Our lawyers are consistently recognized for their service to the profession and excellence in the courtroom. More information about the firm’s practice, its attorneys, and recognitions may be found at www.clarkpartington.com.
