Disability Discrimination and Accommodations During Coronavirus Pandemic

The good news is, disability discrimination is still illegal. I'm seeing employers laying off or firing employees because they think they'll be a liability or are at risk because of COVID-19. That's flatly illegal and wrong.

EEOC has issued a pandemic guidance that answers some of the many questions employers and employees have regarding the interplay between the Americans With Disabilities Act and coronavirus. Here are some answers to some common questions.

Is my employer allowed to take my temperature? Normally, no. It's a medical examination. The ADA prohibits employee disability-related inquiries or medical examinations unless they are both job-related and consistent with business necessity. EEOC says, "Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

• An employee’s ability to perform essential job functions will be impaired by a medical condition; or
• An employee will pose a direct threat due to a medical condition."

In EEOC's summary What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, they say: "Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever."

So short answer, yes, during this pandemic, they can take your temperature.

Can my employer ask about my symptoms?: Normally, they are not allowed to ask information that will lead to the disclosure of a disability. That changes during the pandemic. Based upon the above, yes, they can ask if you have any coronavirus symptoms.

I have a disability that makes me more likely to die or be hospitalized from COVID-19. Can I stay home? You could have your doctor fill out FMLA paperwork (regular, not the new emergency FMLA) and/or put in for a reasonable accommodation for your disability under the Americans With Disabilities Act. Both of those are still in effect and should apply to you.

If you stay home you may be entitled to paid sick time.

Federal, state and local governments are constantly issuing new rules on who has to stay home, which businesses are essential, and what benefits workers may get, so stay tuned and I'll try to update you on major changes.

No, You Can't Use "Religious Discrimination" To Discriminate (But You Can Use It To Refuse To Serve Alcohol)

With all the brouhaha over the clerk who went to jail for refusing to issue marriage licenses to gay couples, plus being in the midst of the Jewish holidays, I thought now would be a good time to talk about religious discrimination and when employers must accommodate religious beliefs.

Here's what EEOC says about when an employer does not have to accommodate an employee's religious beliefs:

An employer can refuse to provide a reasonable accommodation if it would pose an undue hardship. Undue hardship may be shown if the accommodation would impose “more than de minimis cost” on the operation of the employer’s business.
To establish undue hardship, the employer must demonstrate that the accommodation would require more than de minimis cost. Factors to be considered are “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.” Generally, the payment of administrative costs necessary for an accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes or infrequent or temporary payment of premium wages (e.g., overtime rates) while a more permanent accommodation is sought, will not constitute more than de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally cause an undue hardship to the employer. “[T]he Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”

Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.

So how does this play out when applied to some of the recent cases in the news? Here's how:

Elected official refusing to issue licenses: First of all, Title VII exempts elected officials from its application, so the elected clerk refusing to issue licenses to gay couples has no protection under this law. Even if she did, she is not only refusing to issue the licenses but wants to stop her entire staff from issuing them. If the state had to hire an entirely new set of employees to issue the licenses, that would obviously be more than a de minimis cost. Also, the requested accommodation, that she and her entire staff be allowed to refuse to issue the licenses, conflicts with the supreme law of the land, namely, the Constitution. Plus, the accommodation is a demand that the employer's customers be openly insulted and treated as second class citizens. It would clearly be an undue hardship to grant this accommodation. 

Flight attendant refusing to serve liquor: The same folks clamoring for the state to accommodate the recalcitrant clerk are unwilling to support accommodating the Muslim flight attendant who refuses to serve liquor. The flight attendant was being accommodated for two years without any problems by having her coworkers serve liquor when requested, but one coworker complained. Now she's suspended. Here's the problem with the employer now claiming a hardship: it accommodated her for two years. How can it claim that there's a sudden hardship? Time will tell, but I think she probably wins. It doesn't seem very hard to pass the drink order to the flight attendant at the other side of the cart and continue to serve soft drinks and coffee.

Employee who thinks a hand scan is the mark of the beast: As crazy as the belief sounds, if it is sincerely held then it needs to be accommodated, absent an undue hardship. When an employee objected to biometric hand scanning, claiming it was the "mark of the beast" in Revelations, he won his suit against the employer who refused to accommodate him, to the tune of $587K.

Bottom line is that you can't refuse to perform your entire job, but you can ask for accommodations regarding part of your job. You can't demand that your employer discriminate against others to accommodate your religion.

You can't be a bartender who refuses to serve liquor; can't get a job at a hamburger shop and refuse to serve meat; can't get a job at a daycare and the refuse to admit the children because you believe a woman should be at home instead of working; can't be a barber who refuses to shave men's beards. 

But if you need a religious holiday off or don't want to participate in a religious ceremony or activity at work, you're entitled to that.

Can I Tape My Employer If I Have Poor Memory?

I got this question on an old but popular post, I Secretly Taped My Boss and Now I Want to Sue:

I have been telling my supervisor for months that I have a memory problem. He knew that I was working with a neurologist. I recorded a meeting with him where I anticipated finding out what my new job duties would be. I live in MD and was terminated for making the recording, even through I told them why I did it.

Thisguyneedshelp

Hi Thisguyneedshelp. As I stated in my prior post, Maryland is an all-party consent state, meaning that your employer must consent before you are allowed to record them. In your situation, I think withholding consent might violate the Americans With Disabilities Act (ADA).

If your memory problem is caused by a disability, such as Alzheimer's, Parkinson's, or another medical or mental condition that substantially limits a daily life activity, then you are allowed to request a reasonable accommodation for your condition. If you told your employer you need to tape conversations so you can remember them, that's a request for a reasonable accommodation under the ADA.

If you've been taping conversations with their knowledge, then all of a sudden they fired you for doing so, then firing you for doing so may violate the ADA.

If, however, you secretly taped the conversation and they found out about it, you may be out of luck.

Here's what I suggest for people who want to tape conversations in an all-party consent state. Put the tape recorder on the desk in front of the person with whom you are speaking. Turn it on and say, "I'd like to tape this conversation. Is that okay?" If they say yes, then tape away. If they say no, turn it off. You could add, for future employers, "I'd like to tape this conversation to accommodate my memory issues. Is that okay?"

If you were fired for taping without the employer's consent, then Maryland, like every state except Montana, is an at-will state. That means you can be fired for any reason or no reason at all (with exceptions). You can't be fired because of a disability, race, age, sex, religion, national origin, or other protected status. You can't be fired because you blew the whistle on illegal activity of the company, made a worker's comp claim, or took FMLA leave. Otherwise, they can fire you for a bad reason or no reason.

I'd suggest talking to an employment lawyer in your state about your rights.