Lab’s Duty to Protect Returning Employees from COVID-19 Discrimination and Harassment
SITUATION Fully recovered from his bout with COVID-19, Max is thrilled and excited to return to his custodian job after 14 days of mandatory home isolation. But almost immediately, he senses that something is wrong. His co-workers shun him and leave the room the moment he enters. And, while hygiene and handwashing are de rigueur […]
Fully recovered from his bout with COVID-19, Max is thrilled and excited to return to his custodian job after 14 days of mandatory home isolation. But almost immediately, he senses that something is wrong. His co-workers shun him and leave the room the moment he enters. And, while hygiene and handwashing are de rigueur for all maintenance staff, Max alone is required douse his hands in germicide and don rubber gloves each time he touches a piece of equipment. Worse, his supervisor harasses him and calls him “virus boy.” After weeks of putting up with it, Max complains to lab management. But his complaints fall on deaf ears and he continues to be ostracized and made to take extraordinary safety and hygiene measures not required of anybody else. So, he hires a lawyer and sues the lab for disability discrimination.
Does Max have a valid case for disability discrimination?
A. No, because the differential treatment he received were legitimate health and safety measures
B. No, because while actually having COVID-19 may be deemed a disability, Max is fully recovered
C. Yes, because he was forced to go into self-isolation because he had COVID-19
D. Yes, because he was treated differently because he was perceived as having COVID-19
D is the right answer. Max has a valid case because he was harassed and saddled with additional health and safety burdens due to the perception of having COVID-19.
Almost the moment the pandemic began, the U.S. Equal Employment Opportunity Commission (EEOC) made it clear that it considers COVID-19 to be a disability protected from discrimination under the Americans with Disabilities Act (ADA). As a result, subjecting an employee (or job applicant) to differential and unfavorable treatment because they have COVID-19 is disability discrimination. This is also true if that differential treatment is based on the mere belief that the employee or job applicant has the virus, even if that perception is wrong.
This scenario, which is purely hypothetical, is designed to illustrate how those principles play out in real life. The point is that Max was harassed, stigmatized and singled out because he once had COVID-19 and was, wrongly, perceived as posing a greater risk of infection. So, D is the right answer.
WHY THE WRONG ANSWERS ARE WRONG
A is wrong because Max was shunned and forced to take health and safety measures required of no other maintenance employee all because he once had COVID-19. It’s important to note that there’s no scientific evidence to support the notion that people who had the virus are more apt to transmit it to others after they recover; in fact, people recovering from COVID-19 pose a lesser risk because they have antibodies to fight the virus.
B is wrong because a person who doesn’t have COVID-19 can be considered disabled if he/she is perceived as having it. Thus, adverse treatment resulting from being perceived to be disabled is discrimination, even if that perception is wrong. Legally, Max’s situation is like a job applicant who gets rejected because the lab wrongly believes him to be a drug addict.
C is wrong because while being forced to self-isolate due to COVID-19 is differential treatment based on a disability, the EEOC has acknowledged that it’s a justifiable health and safety measure during the pandemic, one that’s also required under current public health guidelines.
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