COVID-19 labor litigation continues amid virus-related diseases ignore Fisher Phillips
Litigation against employers over COVID-19-related issues is starting to take shape in California – and there has been a marked increase in cases alleging that employers are not physical and / or mental under the California version of the Americans with Disabilities Act Disabilities taken into account (ADA). Adapting employees’ physical and mental COVID-19 illnesses has proven difficult for employers. However, you can prevent (and defend against) potential litigation in this area by learning from recent cases.
One such example is the recent lawsuit filed by Jonathan Pantani against his former employer Instapage, Inc. Pantani claims Instapage did not accept him after suffering a COVID-19-related anxiety attack.
In late November 2020, Pantani applied for three accommodations allegedly suggested by his attending physician: (1) extended time off around Thanksgiving; (2) free time to meet with a therapist; and (3) “schedule” working hours with limited responsibilities outside of working hours and on weekends. Pantani claims that his applications for placement were not properly considered and that his employer eventually fired him for applying for placement. Pantani claims Instapage told him he was being fired for “misregistration” and “general misfortune at work.”
While the outcome and veracity of the allegations are unknown, Pantani’s claims that his employer fails to consider a mental health condition and fires him based on his condition are fairly common. These type of cases are a reminder that you need to identify those employees who have a physical or mental condition that could trigger protection under the ADA. Anxiety and psychological distress caused by COVID-19 fears can clearly trigger obligations under the ADA.
What can you do?
You may be able to avoid these types of claims by taking various measures. First of all, you need to be able to quickly see that the ADA is protecting certain employees. Once the ADA issue is flagged, you need to have a dialogue with the employee – an interactive process – and determine and record what reasonable arrangements can be made available to the employee.
In those cases where you are reluctant to provide the requested accommodation, you should document why the provision of the accommodation is an unreasonable burden and try to offer alternative reasonable accommodation. For example, you can offer a temporary leave of absence for an employee who cannot work on the construction site but has to be on site for the essential functions of the job, even if there is no other legal obligation to do so.
To avoid allegations that you terminate the contract as a result of either the mental or physical condition of the employee, or as a result of retaliation for seeking accommodation, you must be able to have a legitimate, non-discriminatory basis for the termination formulate. Very subjective reasons (e.g. bad attitude) for a termination make this hurdle higher in order to overcome it.