We have received many calls lately asking about the rights of employees who are fearful of returning to the workplace during the COVID-19 pandemic.  A patchwork of legal protections may apply in this situation, depending on individual circumstances.  Here are seven things to consider:

First, short-term protections may exist in some situations.  For example, the Families First Coronavirus Response Act requires some employers to provide up to ten days of paid sick leave to employees who test positive for the virus, or who need to care for family members exhibiting symptoms of the virus, or who need to care for a child under age 17 whose school or daycare is closed due to the virus.  (The Department of Labor has prepared a summary of these leave protections.)  If you are worried about returning to the workplace, these short-term protections (if applicable to you) can help you delay your return.

Second, if you have a medical problem that increases your health risk associated with the COVID-19 virus, you may be able to seek an accommodation pursuant to the Americans with Disabilities Act (ADA).  The EEOC recently addressed this situation in the following “question and answer” format:

1. What are an employer’s ADA obligations when an employee says that he has a disability that puts him at greater risk of severe illness if he contracts COVID-19, and therefore he asks for reasonable accommodation?
2. The CDC has identified a number of medical conditions — including, for example, chronic lung disease and serious heart conditions — as potentially putting individuals at higher risk. Therefore, this is clearly a request for reasonable accommodation, meaning it is a request for a change in the workplace due to a medical condition. Because the ADA would not require an accommodation where the employee has no disability, the employer may verify that the employee does have a disability, as well as verifying that the accommodation is needed because the particular disability may put the individual at higher risk.

EEOC Covid-19 Webinar (Question 17).

Therefore, employees who have a medical problem increasing their health risk from COVID exposure (such as chronic lung disease and serious heart conditions) should consider requesting a reasonable accommodation under the ADA.  Possible accommodations include temporary leave, telework, and reassignment to vacant job position that allows for temporary leave or telework.  The Job Accommodation Network is a non-profit organization that provides helpful information to employees and employers regarding accommodations that may be appropriate.

Third, you may be able to obtain job protection pursuant to the Family Medical Leave Act (FMLA), under limited circumstances.  On the one hand, the U.S. Department of Labor warns that “[l]eave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.”  On the other hand, if you have an existing serious health condition, and your doctor believes that time away from work is needed for you due to your serious health condition, then leave under the FMLA may be a possibility worth exploring. (Please note that time-off under the FMLA is not necessarily paid time-off.)  Additional information about the FMLA is available on the webpage of the Department of Labor, including this “poster” with basic FMLA information.

Fourth, what about employees who do not have a physical malady, but who are extremely anxious about COVID exposure.  The general consensus at this time is that a person’s fear of catching or spreading the COVID virus, by itself, will not generate any legal protection.  But, at least in theory, an employee with severe anxiety regarding COVID exposure may be entitled to reasonable accommodation pursuant to the ADA and job protection under the FMLA.  For example, it is possible that some employees may have symptoms justifying a psychiatric diagnosis such as “Adjustment Disorder with Anxiety” (DSM-5, 309.24).  Indeed, medical researchers have confirmed the existence of extreme apprehension among some people regarding the COVID virus, potentially justifying the addition of a new specific “phobia” to DSM-5.

If you have a medical diagnosis due to anxiety, you may want to consider requesting an accommodation under the ADA, and/or seeking job-protection under the FMLA.  As noted above, the ADA and the FMLA have restrictions and exemptions that may exclude you from the scope of legal coverage.  Also, it is important to remember that the employer may require medical documentation to verify the basis for any request for accommodation or FMLA protection.

Fifth, employers may be willing to consider other options to delay the return of a fearful employee.  How about requesting a temporary transfer (or reassignment) to a position in which telework is allowed?  Or perhaps a temporary leave of absence may be possible, if no other options are available.  From the perspective of many employees, these options, while not ideal, are far better than quitting the job or retiring prematurely.

Sixth, OSHA generally requires employers to provide a safe workplace.  You can ask your employer to make your workplace as safe as possible before your return.  You may be able to increase your impact if you work together with co-workers on a request such as this.  If you decide to file a complaint under OSHA, the U.S. Department of Labor has authority to investigate the situation, and can impose fines on the employer for non-compliance.

Seventh, some states and cities may have adopted legal protections that are broader than the federal laws described above.  So be sure to check your local laws before making a decision to quit your job or retire prematurely due to fear of the COVID virus.

To learn more about your options, please contact Kator, Parks, Weiser & Harris for a free consultation.

Proving you were subjected to discrimination or retaliation is only the first step in obtaining relief. Once you have proven your case, it is critical to present evidence of your non-pecuniary damages for your mental pain and suffering. Non-pecuniary compensatory damages are one of the main ways that the EEOC can compensate you for an agency’s discriminatory actions. While having a doctor or other expert testify about your damages can be helpful, it is not necessary. The EEOC has stated that it focuses on three main factors in determining an award of non-pecuniary compensatory damages: (1) duration of harm; (2) extent of harm; and (3) consistency with amounts awarded in similar cases.

With respect to the duration of the harm, the focus is on the length of time that a complainant suffered from the harm, and not the duration of an agency’s discriminatory or retaliatory actions. The EEOC has explicitly noted that a complainant who has suffered from severe depression for one year has obviously endured more damage than a complainant who has suffered severe depression for two months. EEOC Notice No. N915.002 (July 14, 1992). Indeed, if you have subjected to a discriminatory action, for example sexual harassment, the impact of that will likely last long after the sexual harassment has ceased. In evaluating a claim for compensatory damages, the EEOC looks at the length of the period that a complaint has suffered and/or is likely to continue suffering harm as a result of an agency’s discriminatory actions. A doctor’s prognosis that the harm is likely to a certain amount of time into the future can be considered as evidence of the ongoing harm. It is also helpful to establish the time periods you have experienced different symptoms as a result of the discrimination or retaliation as not all symptoms are experienced for the same duration.

The severity or extent of the harm suffered by a complainant also impacts the award of compensatory damages. The EEOC has explained that the extent, nature, and severity of harm must be considered when determining an award for non-pecuniary damages. See Glockner v. Dep’t of Veterans Aff., EEOC No. 07A30105 (Sept. 23, 2004). EEOC cases explore how severe the harm was, and whether the harm was persistent and long-lasting, or transitory or intermittent. As the EEOC’s “Enforcement Guidance” puts it, when determining extent of harm, “consider, for example, whether the harm consisted of occasional sleeplessness, or a nervous breakdown resulting in years of psychotherapy.” This factor focuses on the individual symptoms experienced and the severity of each of those symptoms.

A diagnosis of anxiety or depression or other similar condition, or a exacerbation of a pre-existing diagnosis, would support an award of damages. But with or without a medical diagnosis, other types of harm also support an award of compensatory damages. Frequently observed symptoms of stress and/or anxiety in these types of cases are stress related physical ailments (such as headaches or stomach ailments), weight gain/loss, shortened tempers, frequent tearfulness or crying, panic attacks, distancing oneself from friends and family, sleeplessness, nightmares, and decreased energy. The details of how often you experience such symptoms or how severe the symptoms are can also impact an award. Testimony by friends and family about the observable changes in behavior can bolster a complainant’s testimony and further support an award for damages.

KPWH’s attorneys are experienced at developing cases in support of compensatory damages and helping you articulate the full extent of harm you have experienced as a result of discrimination, retaliation, and/or harassment. For a free consultation about your case, please contact us.