Employers generally try to do the right things for the right reasons. However, as the adage goes: no good deed goes unpunished. Even acting with the best intentions can result in liability. That is why its important to act in compliance with the law, not just with what you might think is fair or in the employee’s best interest.
Case in point, an employer in Pennsylvania will pay $184,000 to settle a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) on behalf of a long term employee it had laid off and later terminated who they feared would get COVID-19 and suffer severe health issues due to a preexisting condition. It didn’t matter that their motives were driven by concern for the employee’s health and safety — the EEOC said it was still disability discrimination.
In a similar case not involving COVID, the EEOC brought suit against an employer in California who terminated an employee who they believed should take time to “focus on her health” once they learned she had been undergoing tests for cancer. The EEOC said that was also disability discrimination.
These cases highlight an important point: an employer’s concern for an individual’s well being does not excuse an action that is otherwise unlawful discrimination. This means that an employer should not withdraw a job offer, postpone a start date, exclude an employee from work, or take any other adverse action simply because the person’s health, age, or pregnancy could expose them to a higher risk of severe illness or injury. So, what is a well-meaning employer to do?
There are very limited circumstances in which an employer who is concerned regarding the health and safety of an employee can act without risking liability for discrimination.
Under the Americans with Disabilities Act (ADA) an employer has to establish that the employee’s disability poses a direct threat to their own health or safety, or the health and safety of others and that threat cannot be eliminated or reduced by reasonable accommodation before taking any form of adverse action. While not insurmountable, the bar for proving direct threat is high. Even when an employer can prove an employee’s disability creates a significant risk of substantial harm, it must also determine that the threat cannot be eliminated or reduced by reasonable accommodation. It’s not enough for the risk to exist. The risk must exist despite any and all accommodations.
Employers should never make employment decisions based on assumptions regarding an employee’s current health, medical history, age, or pregnancy — even if done with good intentions. Fear of a potential workers’ compensation claim or increased medical benefits cost should also never be the basis for any adverse action. Any change to an employee’s terms and conditions of employment related to disability, age, or pregnancy should be lead by the employee. Employers should never substitute their judgment for that of the employee and their healthcare provider.
Employers should not feel discouraged from being generous or offering assistance to their employees when it’s needed. Just do it in compliance with the law. If an employee is telling you they do not need time off to deal with their medical issue or that they can continue to work around chemicals during pregnancy or have been cleared by their doctor to work in their manual labor job despite their age, don’t take it upon yourself to do what you think is in their best interest. That is how the employers above got themselves into trouble. Always encourage employees to let you know if they need an accommodation, but don’t make that decision for them.
