Q: My work required me to interact with a lot of people. I became infected with COVID-19. I was hospitalized and went on disability leave. After 8 weeks of quarantine and after being relieved of symptoms, my doctor ordered another test, which came back negative. I was then cleared to go back to work. When I called my employer I was told that I needed to submit two negative COVID-19 tests before I can come back to work. The next day, I received a call from HR that I was being terminated because “they just could not take the chance.” What are my rights?
A: The continuing uncertainty brought by the COVID-19 pandemic has undoubtedly created fear among us. Nowhere is this fear more evident than in the workplace, as employees return to work after the nearing completion of the stay at home order. It has become another challenge, especially for those employees who recovered from a positive or "presumptive positive" diagnosis of COVID-19, or who had cared for a family member who had a COVID-19 illness.
These returning employees may be subjected to discrimination or harassment based on their actual or (simply) perceived disability, or based on a record or history of disability.
This medical crisis has brought emergency legislation aimed to protect employees' rights in light of the new conditions. Existing laws that protect those who had been sick, however, remain in place. Disability laws under the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) continue to be in effect.
These laws prohibit discrimination against a person with a disability. Disability is defined as a physical or mental impairment that substantially limits one or more major life activity. The anti-discrimination laws protect persons who have a record of such a disability, even if they do not currently have a disability. Individuals who do not have a disability but are regarded as having a disability are also protected.
The ADA also makes it unlawful to discriminate against a person based on that person's association with a person with a disability. The FEHA defines disability to include actual or perceived physical or mental disability or medical condition that is disabling, potentially disabling or perceived to be disabling (“perceived disability”) or potentially disabling (“perceived potential disability”). The ADA applies to workplaces with 15 or more employees, while FEHA provides a threshold of 5 or more employees.
A “record or history of disability” includes previously having, or being misclassified as having, a record or history of a mental or physical disability of which the employer is aware. For example, an employee may have had a history of virus transmission. If, however, they are now healthy and able to work, that employee is protected from discrimination.
A “perceived disability” means being “regarded” or “treated” as having a disability. Perceived disability includes being treated by the employer as having, or having had, any mental or physical condition or adverse genetic information that makes achievement of a major life activity difficult; or being subjected to an adverse employment action (such as being fired or demoted) whether or not the perceived condition limits, or is perceived to limit, a major life activity.
A “perceived potential disability” includes being regarded, or treated by the employer as having, or having had, a physical or mental disease, disorder, or condition that has no present disabling effect, but may become a mental or physical disability.
An employer may harbor serious concerns about an asymptomatic employee previously diagnosed with COVID-19. But if the employee is now healthy and able to work without being a threat to their health or those of others, they are equally entitled to disability protection.
Therefore, if the employee has been given a clean bill of health by their doctor, is able to perform the essential functions of the job with or without reasonable accommodation, and has provided the appropriate documentation, the employee should be allowed to return to work.