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Frequently Asked COVID-19 Employment Questions and Answers

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COVID-19 Employment Task Force

The Law Office of Jeffrey A. Goldberg has a dedicated Task Force to assess COVID-19 cases for employees and executives who have been terminated from employment or retaliated against due to COVID-19 in San Antonio or Austin.  We offer a free, confidential case evaluation.

These are some of the frequently asked questions that may be helpful to you. 

If I am currently working from home, do I have to go back to work if I fear I will get COVID-19 because I have an underlying health condition or disability?

  • if you have an underlying health condition or disability and you fear returning to work,  your employer may have an obligation to assess whether working from home may be a reasonable accommodation pursuant to the American’s with Disabilities Act as Amended. The Center for Disease Control [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. The employee should request a reasonable accommodation, meaning it is a request for a change in the workplace due to a medical condition or disability. The employer may verify the nature of the disability and determine if an accommodation is needed and available—which may be working from home, or some other form of accommodation at work.  There may also be situations where pre-existing disabilities are exacerbated by returning to work and an employee may ask for a reasonable accommodation.  The Equal Employment Opportunity Commission [EEOC] enforces discrimination, retaliation and accommodation laws and you might need to file a Charge of Discrimination with the EEOC if the employer refuses a reasonable accommodation if you have a disability, or otherwise refuses to assess whether a reasonable accommodation is possible.  Time limits apply to file such Charges and failure to timely file a Charge could result in waiving your legal rights. 
  • if you have been working from home and the employer requires you to return, working from home may be a reasonable accommodation. Keep in mind, there may be other reasonable accommodations that the employer may offer in the office, depending on the disability and potential accommodations that could be made. However, if working from home is a reasonable accommodation such accommodation may create an “undue hardship” on the company. The financial impact on the company if you work from home may be considered an undue hardship. 
  • a company should verify and assess reasonable accommodation requests based upon a disability or serious health condition and should make reasonable accommodations so long as it does not create an undue hardship on the company

What if I complain about an unsafe workplace because the employer does not have proper personal protective equipment or cleaning procedures for COVID -19 and I am fired or suspended because of my complaint?

  • if you are fired, suspended, demoted or written up after raising safety concerns about the workplace [such as lack of personal protective equipment or lack of cleaning procedures], the employer may have violated the Occupational Safety and Health Administration’s [OSHA] regulations that provide protection to employees from termination or retaliation if they report safety violations in the workplace. There are very short time limitations to report such violations [30 Days] to OSHA and failure to make a timely report would result in waiving your rights under OSHA. 
  • employees have protections if you speak to co-workers about working conditions or refuse to work in unsafe working conditions due to COVID-19, or other safety issues, and bring these issues up to your employer. If you are fired, demoted, suspended or your pay is reduced because you make such complaints, you may also have legal protections under the National Labor Relations Act.
  • your employer cannot fire you, discipline you, suspend you or threaten you because you speak to co-workers about safety issues at work, including discussions about safety concerns about COVID-19 in the workplace. 

If you feel like your health, or your co-worker’s health is in immediate danger because of COVID-19, and your employer terminates you, suspends you, or takes any other adverse action against you because you complain, contact us as soon as possible to protect yourself and others. Our San Antonio employment discrimination lawyers have the experience you can depend on in such a difficult situation.

What if my employer refuses to bring me back to work during COVID-19 because they fear for my safety because I have an underlying health condition or because of my age?

  • if an employer does not bring you back to work because of your age, the employer may have engaged in age discrimination—treating you differently because of your age. If you are over age 40, State and Federal laws protect you against age discrimination;
  • State and Federal law also protects older workers if an employer refuses to return them to the workplace and requires them to telework, or place them on involuntary leave if other workers, under 40, are not treated similarly; 
  • if your employer refuses to bring you back to work because it perceives that you have a disability or underlying health condition, including pregnancy,  and you are able to return to work, then the employer may have violated State and Federal laws designed to protect individuals with disabilities, even when the employer perceives that an individual may have a disability. 

What happens if I get COVID-19 and my employer will not bring me back to work?

 

  • an employer may legally refuse an employee to return to work if the employee has COVID-19 because that employee may pose a direct threat to the workplace. 

 

What happens if I recover from COVID-19 and my employer refuses to bring me back to work?

  • if you get COVID-19, you may apply for Family Medical Leave and, if you do, and the employer refuses to bring you back to work, then the employer may be violating the retaliation protections for employees under the FMLA;
  • if the employer refuses to return you to work because the employer believes you have a disability, then the employer may be violating the Americans with Disabilities Act [ADA] because the employer perceives you as having a disability. 

Our experienced employment discrimination lawyers in San Antonio are here to help you if you find yourself in one of these situations. With 30 years of experience, we know the ins and outs of employment law and can give you the confidence you need to move forward and get back to your life.

Is COVID-19 considered a “disability” under the Americans with Disabilities Act [ADA]?

  • At this time, this is an evolving question for the Equal Employment Opportunity Commission. [EEOC] There appear to be potential long-term impacts of COVID-19, including depression, mental impairments, sleep disorders or muscle issues. The EEOC has not yet determined that COVID-19  is a disability, but certainly, individuals with related symptoms [depression, chronic fatigue, mental impairments] may have disabilities that provide legal protection. This issue is evolving and the EEOC may have guidance in the near future as to whether individuals who have, or had, COVID-19 is considered a disability. 

What can I do if I need my case evaluated related to COVID-19?

  • you may contact the Law Office of Jeffrey A. Goldberg for a free case evaluation to help you assess whether or not you may have a legal claim that the office may assist you with.

Feel free to call, send us an email, or visit the website to complete our contact form and we’ll reach out as soon as we can. Our San Antonio employment discrimination lawyers will be able to answer your questions and help you understand your rights. Don’t hesitate to contact us today.

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