Dive Brief:
- A Pennsylvania-based natural gas well service will pay $184,000 to settle a U.S. Equal Employment Opportunity Commission lawsuit alleging it unlawfully fired an employee because he had cancer and it didn’t want him to get COVID-19, the agency announced Aug. 4.
- The employee worked for the company for 12 years as part of an oil rig crew and then, in 2017, after he was diagnosed with cancer, as a mechanic in the maintenance shop, according to the complaint. In March 2020, the owner placed him on leave and told him it was because he had a history of cancer and the owner didn’t want him to get COVID-19 and get sick, the lawsuit said. The owner allegedly explained that, “We have to lay off anybody with health issues.” He fired the employee two months later.
- The EEOC sued the company for violating the Americans with Disabilities Act, which prohibits employers from laying off, terminating or forcing an employee to quit based on a real or perceived disability or history of disability, the announcement said. Pursuant to a consent decree, the employee will receive $174,000 in lost wages and $10,000 in compensatory damages.
Dive Insight:
Even if done with good intentions, employers violate the ADA when they “reflexively fire employees after learning of a medical condition,” the EEOC noted in a 2019 announcement about an unrelated lawsuit. The suit involved an employee who was fired after undergoing tests for cancer because her employers believed she should “focus on her health.” The EEOC sued the company for illegally firing her based on a perceived disability. The parties settled the case in January, HR Dive reported.
COVID-19 doesn’t change this standard. The EEOC has consistently cautioned that, “an employer’s concern for an [individual’s] well-being — an intent to protect them from what it perceives as a risk of illness from COVID-19 — does not excuse an action that is otherwise unlawful discrimination,” according to the agency’s guidance on COVID-19 and the ADA.
This means that under the ADA, employers may not withdraw a job offer, postpone a start date, exclude employees from their jobs or take any other adverse action merely because a person’s health condition, age or pregnancy could expose them to a higher risk of severe illness if they contract COVID-19, the guidance states.
If an employer is concerned that the health of an employee with a disability might be jeopardized by being at work, the ADA allows it to take adverse action only in very narrow circumstances. The employer must establish that the disability poses a “direct threat” to the employee’s health or safety or to the health and safety of others in the workplace and the threat can’t be eliminated or reduced by reasonable accommodation, the guidance says.
Direct threats are those that pose a substantial risk of harm to the employee or others in the workplace. The ADA sets a high bar for showing this, according to the guidance. The employer must analyze a number of risk factors, including whether the disability is well-controlled and the employee is up-to-date on vaccinations.
Even if the employer finds that a direct threat exists, it still has to determine whether the threat can be reduced or eliminated by reasonable accommodation before it can take adverse action. These determinations require careful, highly individualized assessments, EEOC officials have said.
In the most recent case, the employee successfully performed his duties, the EEOC said. At the time of his layoff and termination, he was performing his duties without restriction beyond needing occasional time off for medical visits, according to the complaint. At no time did the company discuss with him the possibility of reassignment (a possible accommodation) to a position he’d performed in the past, the agency said.
