With businesses reopening in Massachusetts, a major challenge is how to handle employee concerns about returning to the workplace while the COVID-19 pandemic continues. Laws enacted to specifically address COVID-19 in the workplace protect employees who contract the illness, need to take care of a household member who has contracted the illness, or cannot work due to COVID-19-related child care unavailability. However, employees who are at risk of COVID-19 complications due to other health issues or who have at-risk household members present a challenge for employers, as those individuals do not squarely fall within the protections of the COVID-19 specific statutes.
A case recently filed in federal court in Massachusetts highlights the legal risks for employers who deal too harshly with those employees. The plaintiff is a 55-year-old engineer who lives with his elderly mother. Both he and his mother are at elevated risk of COVID-19 complications. When his employer called him back to work as part of their workplace reopening, he informed the company of his concerns and requested a continued teleworking arrangement. The employer insisted that he come to the office to work, and when he reiterated his concerns, the employer fired him.
The employee filed suit, making claims for age discrimination, disability discrimination, national origin discrimination, retaliation, and breach of the state’s sick time law. In addition to the failure to consider the employee’s request for an accommodation, the employer’s conduct here is questionable in a number of other respects.
First, within days after this employee was fired, a number of other employees fell ill and were diagnosed with COVID-19. As a result, the employer instructed all employees to work from home. The company did not contact the plaintiff or attempt to rehire him. Second, the company allegedly allowed other employees to work from home during the same timeframe that the plaintiff sought his work from home accommodation. Finally, the plaintiff’s manager allegedly told another employee that he was “making an example” of the plaintiff. This statement demonstrates hostility towards the plaintiff and could be important evidence of illegal motivation.
While employees are not typically entitled to stay home based on generalized fears of falling ill, employees remain protected by state and federal discrimination laws. Employers should meaningfully consider employee requests for accommodations based on disabilities, which may include COVID-19 risk factors. In addition, employers must apply their policies, such as leave policies and telecommuting policies, in a non-discriminatory manner. Employers also may not retaliate against employees who seek accommodations.
The current reopening process presents many ambiguities and traps for the unwary. At Bennett & Belfort, we advise clients on their rights and obligations under employment laws and COVID-19 related employment issues. If you are confronting any of these issues, please contact us for a consultation.