Matthew Marcucci Authors, "Case Law May Guide NY Employers On COVID-19 Bias Risks"

Publication Source: Law360

By: Matthew Marcucci

The COVID-19 outbreak has affected all aspects of American life, and perhaps none so much as the employer-employee relationship. Important new federal and state laws now provide employees with virus-related paid leave and other protections.[1]

For example, the federal Families First Coronavirus Response Act mandates paid leave for certain categories of affected employees. And New York state has gone even further by passing COVID-19-related paid leave legislation that forbids employers from firing employees subject to orders of quarantine or isolation.

In short, COVID-19 has thrown the employer-employee relationship into flux. The new status quo includes enhanced obligations for employers under the New York State and New York City Human Rights Laws, or HRLs. These laws prohibit discrimination on the basis of traits such as race, creed, national origin and disability.

Now, the HRLs extend to discrimination involving COVID-19. Accordingly, New York employers must carefully navigate the post-pandemic world. As employers implement measures to mitigate the virus's effects, they must ensure that such measures do not rise to the level of unlawful COVID-19-based discrimination.

New York City has responded most strongly to the outbreak. The city's Commission on Human Rights announced that "[h]arassment and discrimination on the basis of race, national origin, age, and disability (including having COVID-19 or another serious illness) is illegal under the New York City Human Rights Law."[2] This language strongly implies that the virus itself qualifies as a disability that triggers liability under the city's HRL.

While New York state has not gone quite as far as the city, its Division of Human Rights, or DHR, has declared that discrimination involving COVID-19 can violate the state's HRL. The DHR recently issued a fact sheet outlining some of the upshots of this development:[3]

• Employees can file a complaint with the DHR if they believe they have been discriminated against because of a perceived connection between their race, national origin or disability and COVID-19.
• Employers cannot fire their employees, send them home or tell them not to come to work because they think they may have been exposed to COVID-19 based solely on their race, national origin or disability.
• Employers cannot terminate their employees or prevent them from working based on speculation that their race, national origin or disability indicates possible exposure to COVID-19.
• Employers cannot discriminate against employees who choose to wear face masks as protection against possible exposure to COVID-19.
• Employers who terminate or send home their employees for a discriminatory reason may be responsible for the employees' missed wages.

At the federal level, things are less certain. The Americans with Disabilities Act also prohibits disability-based discrimination. But the agency that enforces the ADA, the U.S. Equal Employment Opportunity Commission, has not determined whether COVID-19 qualifies as a disability under the ADA.[4]

As the legal landscape continues to adjust to COVID-19, it is clear that the outbreak is changing basic aspects of some the most important laws for employers. And while courts have not yet had the opportunity to adjudicate claims of COVID-19-based discrimination under the HRLs, prior court opinions involving analogous claims provide critical guidance on how employers can limit their liability exposure going forward.

The definition of "disability" under the state's HRL is expansive. Not only do physical or medical impairments count, but so too does a "record of such impairment" or a "condition regarded by others as an impairment."[5] Even if an employee does not actually have COVID-19, therefore, employers likely will face liability for discrimination predicated on the false assumption that the employee does.

Employers should also consider whether they can provide their disabled employees with reasonable accommodations that would enable these employees to continue performing their essential job functions.

As a general matter, employers can terminate disabled employees without fear of violating New York law if their disabilities totally prevent these employees from performing their duties — even with the benefit of a reasonable accommodation.[6] But if the employer can provide disabled employees with reasonable accommodations that enable them to perform their essential job functions, then the law prohibits disability-based discrimination.

Courts apply a rigorously fact-specific test to assess whether an employer who terminated a disabled employee did so in a discriminatory manner. The "particular disability must be such that it prevents the particular individual from performing in a reasonable manner the particular activities involved in the job or occupation before an employer is permitted to terminate the individual employee."[7]

Just because an employee has COVID-19 or is displaying symptoms is not enough to justify termination. Rather, employers should only begin contemplating adverse actions such as termination where no reasonable accommodation would enable an employee affected by the virus to perform his specific duties. And even then, employers must proceed with caution.

In Antonsen v. Ward in 1991, for example, a New York City police officer with Crohn's disease convinced the New York Court of Appeals that his dismissal violated the state's HRL. Although the officer had been successfully treated for the disease, the police commissioner argued that certain scientific literature established that the disease would recur.

Accordingly, the police commissioner contended that the officer's dismissal did not violate the law. The court completely rejected this argument, stating:

Employment may not be denied based on speculation and mere possibilities, especially when such determination is premised solely on the fact of an applicant's inclusion in a class of persons with a particular disability rather than upon an individualized assessment of the specific individual.[8]

The Antonsen case has powerful lessons in the COVID-19 era. First, employers cannot terminate employees on the assumption that, at some indeterminate point in the future, the virus's lingering effects will prevent affected employees from doing their jobs.

Such a decision, based on speculation and mere possibilities, almost certainly would violate the law. More broadly, the Antonsen case demonstrates the highly individualized nature of a court's inquiry into the reasons for an employee's termination. Now, courts may assess whether an employer who terminated an employee affected by COVID-19 based its decision on the employee's inclusion in the class of persons with the virus rather than an individualized assessment of the employee's specific role in the company.

As to reasonable accommodations, employers should make every effort to engage in a good faith dialogue with their disabled employees about measures that might enable them to continue working. This point may become particularly important in situations where an employee has recovered from COVID-19 but continues to suffer long-term respiratory or other impairments resulting from the virus.

In Jacobsen v. New York City Health and Hospitals Corp. in 2014, for example, an employee of the New York City Health and Hospitals Corp., or HHC, who performed site inspections of asbestos abatement projects contracted a serious lung disease.

Upon returning to work after a medical leave of absence, the employee complained that he had difficulty breathing and repeatedly requested protective respiratory equipment. But the HHC denied these requests, and instead merely provided the employee with a dust mask. Eventually, the HHC terminated the employee, who alleged that the HHC had violated the state's and city's HRLs.

The HHC sought summary judgment dismissing the employee's claims. But the New York Court of Appeals found that, as a matter of law, the HHC could not prevail. Specifically, the court held that the HRLs

generally preclude summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee's request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.[9]

Had the HHC taken the simple step of responding in good faith to the employee's request, it might have entirely avoided this adverse result. Indeed, according to the court in Jacobsen, "where the employee seeks a specific accommodation for his or her disability, the employer must give individualized consideration to that request and may not arbitrarily reject the employee's proposal without further inquiry."[10]

The court wrote, "as a matter of common sense," the employee's request for a respirator "would have reduced [his] dust exposure and logically might have allowed him to continue working at construction sites at the time he asked for that accommodation."[11]

The court's decision placed the employee in a commanding position. Short of agreeing to settle the case, the HHC had no choice but to proceed to a full trial on the merits of the employee's claims. Similarly, employees who recover from COVID-19 but suffer lingering effects may propose accommodations to enable them to work, and employers would be mistaken not to take these requests seriously.

In sum, employers must balance their efforts to deal with COVID-19 against their enhanced legal obligations under New York law. This changing landscape will continue to evolve, and employers should make every effort to keep pace.

Matthew A. Marcucci is an associate at Meyer, Suozzi, English & Klein, P.C.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.msek.com/publications/paid-covid-19-leave-navigating-available-benefits-under-the-federal-ffcra-and-new-york-state-law/.

[2] https://www1.nyc.gov/site/cchr/media/covid19.page.

[3] https://dhr.ny.gov/sites/default/files/pdf/postings/DHR_COVID19_DiscriminationHandout_032420.pdf.

[4] https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar ("[I]t is unclear at this time whether COVID-19 is or could be a disability under the ADA.").

[5] Matter of Antonsen v. Ward , 77 N.Y.2d 506 (1991).

[6] Jacobsen v. New York City Health and Hosps. Corp. , 22 N.Y.3d 824 (2014).

[7] Matter of Antonsen, supra.

[8] Id.; see also Matter of Brentwood Union Free School Dist. v. Kirkland, 126 A.D.3d 898 (2d Dep't 2015) ("Although the petitioner proffered some evidence at the hearing that the complainant's [lung disease] may have prevented him from performing the duties of the job in a reasonable manner, the petitioner did not have this information at the time it made its determination and, in any event, this evidence merely conflicted with other evidence in the record indicating that the complainant's disability did not render him incapable of performing the duties of the job in a reasonable manner.").

[9] Jacobsen v. New York City Health and Hosps. Corp., supra .

[10] Id.

[11] Id.

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