Consider the following hypothetical. An employer hears an employee coughing and looking a bit run down. Fearing that the employee will infect the entire work force with Covid-19, the employer terminates the employee. Does the employee have a case against the employer?
We must start this inquiry by mentioning the American with Disabilities Act (ADA). This is a Civil Rights law passed in 1990, and prohibits discrimination against individuals with disabilities in all areas of public life, including schools, jobs, transportation and any public or private places open to the public. For employers, the Act only applies if they have 15 or more employees.
If an employee sustains an illness or an injury, the employer must make “reasonable accommodation” to the employee's job, if that is at all possible. For example, if an employee doing heavy manual labor injures his back, but there is a sedentary job opening he can do, the employer must offer him that job.
The situation with Covid-19 poses a unique problem for the simple reason that, in this instance, we are not just dealing with the welfare of one employee, but the welfare of the other employees as well.
The ADA does permit employers to make decisions based upon safety concerns, but this must be done carefully. To terminate an employee, the employer would have to have a very reasonable belief, based upon objective evidence, that the employee is infected with the Covid-19 virus.
The U.S. Equal Employment Opportunity Commission has established guidelines for employers wrestling with the problem of a potentially Covid-19 infected employee. These guidelines are quite detailed, and can be found at the following website: