Coronavirus and How Your Employer’s Response May Have Violated Workplace Disability Discrimination Laws in California

The state of California set a bleak milestone recently as it surged past 300,000 total cases of coronavirus, according to Deadline. The Mercury News reported that, on July 12, Alameda County was added to the state’s coronavirus “watch list.” There are many ways that coronavirus can hurt you, but one way you perhaps hadn’t considered is the possibility of contracting the virus and recovering, only to be faced with discrimination when you try to return to work (due to your having had the virus.) If that happens to you, California’s discrimination laws may have options for you to obtain compensation for the harm you suffered, so be sure to contact an experienced Oakland employment attorney right away.

One of the first things that you should understand is, if you have tested positive, there are certain things that California’s law forbidding certain forms of workplace discrimination (the Fair Employment and Housing Act) says your employer can do, and other things it cannot.

The law in California may allow an employer to make certain demands of employees in order to ensure that the employee in question is capable of doing the job and doing it safely. These are called “fitness for duty” exams, and they typically include a medical examination and a certification from a medical professional that any safety concerns related to that worker’s return to the job no longer exist.

The FEHA does not allow an employer to demand a fitness-for-duty exam and certification in all situations, however. The employer must have safety concerns that are related to the worker’s ability to perform his essential job functions and those concerns must be reasonable under the law. Additionally, the fitness-for-duty exam must be both job-related and a business necessity.

Not just actual disabilities but also perceived disabilities

The anti-discrimination provisions of FEHA that relate to workplaces protect employees from discrimination based on disabilities or perceived disabilities. So, if you have been tested for COVID-19 and tested positive, your employer may be permitted to require you to submit a record of a subsequent negative test result and a certification from a medical professional.

Your employer is not, however, entitled to take one positive result you had and terminate you, even in spite of your subsequent negative test result and certification of clearance by a doctor. Even if the employer thinks that its action represents a good-faith abundance of caution to protect everyone, it may still represent illegal discrimination based on a perceived disability, which is barred by FEHA.

Even if you’ve never tested positive for COVID-19, it is still possible for you to have suffered illegal disability discrimination in relation to the virus. If, for example, your employer has, of its own accord, altered your job duties (such as forbidding you from returning to the office or from meeting clients face-to-face) because you have asthma, COPD or some other pulmonary-related condition, but has allowed other coworkers without those conditions to return or resume meeting with clients, then your employer (while potentially motivated by well-meaning concern) may still have violated FEHA by engaging in disability discrimination.

With the nature of diseases constantly evolving, the nature workplace disability discrimination in California is evolving, too. Employers, fearful of a new and mysterious disease, may allow that fear to lead them into taking steps that violate your rights and California law. When that happens and you’re harmed as a result of that discrimination, contact the Law Office of Stephen M. Fuerch. Attorney Fuerch is a knowledgeable Oakland employment and personal injury attorney whose extensive experience can help you to use the legal system and get the results you need. To learn more, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

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