FAQ: Employee Rights -- Forced Quarantines And Is There Such A Thing As Wrongful Termination Due To Coronavirus
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The Coronavirus outbreak continues to spread with an ever-increasing number of deaths and infected individuals. Given how easily this disease spreads, authorities have imposed quarantines in cities across the country. But what happens if you have to miss work as a result of quarantine? What happens if an employer forces an employee to stay at home not as part of a formal quarantine but as a self-imposed isolation because the employer fears its employee may have been exposed to the virus somehow?
There are many questions. Here are some answers that hopefully help:
Can my employer force me to stay home from work if I, or one of my family members, contracts an infectious disease? — Yes, under the Americans with Disabilities Act (ADA), an employer may force an employee to stay home if the employer believes that the employee will pose a direct threat to the workplace due to having or being exposed to, a serious infectious disease. This includes employees that are still willing and able to work. Many diseases are very infectious. For example, the Measles virus can be caught if you enter a room where an infected individual was located thirty minutes ago. Sometimes the best way an employer can prevent the threat of exposure to all employees is to require one employee to stay home from work.
If my employer forces me to stay home from work due to a fear of spreading an infectious disease just because a family member is ill, will that count as part of the my 12-week allocation of leave under the FMLA? — No, if an overly cautious employer forces an employee who does not have an infectious disease to stay home from work, this time cannot be charged against the employee's 12-week entitlement under the FMLA. As a general rule, employers are not allowed to charge employees with FMLA leave when that leave is required by the employer.
Can employers discriminate against workers that just emigrated from a nation were a specific infectious disease is prevalent, due to a fear of that infectious disease? — Employers may not discriminate against an employee based on the employee's nationality. During the swine flu pandemic, the EEOC released a comment indicating that any discrimination based on nationality, even if based on an honest fear of the swine flu virus, would violate Title VII of the Civil Rights Act of 1964.
Is my employer allowed to require employees to adopt infection control practices to combat an infectious disease? — Yes. Requiring infection control practices is not only a good idea during a disease pandemic, but also does not implicate any violation of the ADA. Additionally, an employer is allowed to require personal protective equipment designed to combat the spread of an infectious disease. If an employee needs a reasonable accommodation in order to use certain safety equipment (e.g. latex allergy) then an employer must provide it to the employee.
Does my employer have a duty to protect me from an infectious disease at work? — Yes. According to OSHA, the law that requires employers to provide a safe workplace, your employer does have a duty to protect you from recognized hazards. However, there is no specific duty that details what an employer must do to protect you from an infectious disease.
Can my employer force me to supply personal safety equipment to prevent the spread of disease? — No. If your employer has determined that personal protective equipment is required for the worksite, then it is the employer's responsibility to make sure that it is provided at the job site.
Is my employer allowed to track whether I or my family members have contracted an infectious disease? — It depends. Typically employers cannot force you to tell them if you have a disability or a sickness that others are not at risk of catching. However, under the ADA, during a pandemic, an employer may require employees to disclose whether they or their family members have been exposed to an infectious disease.
Can my potential employer require me to undergo a medical examination after being hired, but before I start work to determine if I have been exposed to an infectious disease? — Yes, the ADA does permit potential employers to require medical examinations of entering employees after they have already extended an offer of employment. However, employers cannot administer these medical exams in a discriminatory fashion and must require these medical exams from all new employees in the same job category.
Can my employer require me to work from home, when my family and I have no symptoms, in order to prevent the spread of an infectious disease? — Under the ADA, if there is an outbreak of a serious health concern, then employers are allowed to require employees to work from home. However, employers are generally not allowed to single out employees to work from home.
Is my boss required to grant me leave if I have been quarantined due to an infectious disease? — This is a complicated question that is currently in flux due to passage of new laws by the U.S. Congress. Many states do not have laws preventing employers from firing someone who is quarantined by the state, so long as there is no contract or union agreement. In Texas, however, employers should be wary of terminating an employee who is quarantined by a health care authority, even if they are not sick. A state statute makes it illegal to ignore an ordered quarantine. If any employer effectively required an employee to violate such an order or be fired, this would likely be an actionable wrongful discharge in Texas. (I say “likely” because there is little or no case law in deciding these issues because they simply have not had occasion to come up through the courts yet.)
If the employee IS sick, then the FMLA would likely provide up to 12 weeks of job protection for leave required by the virus. Congress has also just passed the Families First Coronavirus Response Act (“FFCRA”), which provides for paid sick leave and expanded FMLA protections for employees of employers with less than 500 employees. The new law does not go into effect until April 2nd and you can review all the details about the new leave provisions on our dedicated FFCRA information article.
Can my employer terminate me because I have been diagnosed with the Coronavirus or because my employer wrongly believes I have the virus? — This is another question that has yet to be definitively answered but the answer is, probably, no. The ADA protects employees from being terminated due to a disability or serious health impairment even if it does not rise to the level of a true disability. It also protects employees who are “regarded as” have such an impairment or disability, even if it turns out they do not have one. So, if an employer terminates an employee because they think they have the virus, that termination may very well be unlawful under the ADA. Of course, at this point this is all theoretical. No court has has decided this issue yet because the situation is so new.
