I’m Jamie Gilmore, an employment attorney with Bailey & Galyen. Every commercial on the tv and radio all starts with the same thing, “you are living through an extraordinary period in US history” or “in these trying times of COVID” blah, blah, blah. I’m not minimizing the loss of life because of COVID or the necessary and life-saving precautions we must take to save our neighbor. What is clear is that COVID-19 is real and it is deadly. What remains unclear is whether it is a disability according to Texas and federal law. What is a disability under the law? What about an injury – either one that you suffered on the job or on your own time? What do you do when your employer takes an adverse employment action against you because of your illness, injury, or disability? These are questions that you should be asking yourself, and the attorneys at Bailey & Galyen can help you answer some of these questions.
There are federal and state laws that protect employees from an adverse employment action because of an injury, illness, or disability. Unfortunately, not every injury, illness, or medical condition is considered a “disability.” Each law is a little different, but for the most part, the law protects an employee if the employee has a physical or mental impairment that substantially limits a major life activity. You are also generally protected if you have a history of a disability or if your employer believes that you have such a disability, even if you don’t.
If your injury, illness, or disability requires accommodations from your employer, it is important that you put those accommodation requests in writing to your supervisor and your HR department. Your employer is legally obligated to attempt to reasonably accommodate your requests. However, your employer is not required under the law to abide by every request you make for accommodation. An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship — that is, that it would require significant difficulty or expense.
A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. One such reasonable accommodation is unpaid time off work. However, this time off work is not unlimited. If you do not have a return to work date, or if the time you are requesting off from work is too long, your employer is not required to hold your position and grant you unlimited time off. The FMLA permits up to 12 weeks unpaid leave if you meet certain qualifications, and the ADA may also provide that that amount of unpaid leave may be a reasonable accommodation.
At this point, it is not decided whether COVID-19 is a disability that is protected under the existing laws, but our firm aggressively argues that it is. We believe that the law prohibits discrimination and termination by your employer because you were diagnosed with COVID or your employer believes you have COVID. If you are an individual with a disability that is at risk of complications if you contract COVID, you may be entitled to a reasonable accommodation under the ADA. However, the ADA does not provide you legal protection for a reasonable accommodation if a family member is at greater risk if they contract COVID. In that instance, the FMLA or the new laws may provide protection to employees for time off work to care for a family member.
If you believe you have been a victim of discrimination for your injury, illness, or disability, you must file a Charge of Discrimination with the EEOC or TWC within a certain number of days, at most 300 days from the discrimination. Further, if you believe that you have suffered retaliation because you filed for workers’ compensation insurance, you must file a lawsuit within 180 days of the retaliation, or you lose that cause of action forever.
The employment attorneys at Bailey & Galyen are knowledgeable and experienced with workplace discrimination, harassment, and retaliation because of employees’ injuries, illnesses, and disabilities. I am not qualified to answer any questions about receiving medical treatment or navigating you through the workers’ compensation process if you are injured on the job. I leave that area of the law to my colleagues at the firm, and I am happy to put you in touch with one of those attorneys if you have questions about workers’ compensation.
We will relentlessly for our clients. We offer a free consultation with experienced employment attorneys and staff to give you the advice and guidance you need to make a decision about your legal rights. Call me today to discuss your employment situation.