Employers of immunocompromised employees should tread carefully during the COVID-19 pandemic
Question: I have an employee with a compromised immune system which places her at a higher risk of death if she contracts COVID-19. However, I’d like all of my employees to begin working in-person at the office. Can I fire an employee with a compromised immune system if she refuses to appear at work in-person?
Answer: Maybe not. A person with a compromised immune system will generally qualify as person with a disability as defined by the Americans with Disabilities Act of 1990 (hereafter, “the ADA” or “the act”). With that in mind, your obligations under the ADA continue during the COVID-19 pandemic.
The ADA defines a disability to include “a physical or mental impairment that substantially limits one or more major life activities of such individual…”.[1] Further, the act makes clear that “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system.”[2]
Thus, all employers should be on notice that employees with compromised immune systems are indeed within a protected class of workers.
Still, the ADA and the EEOC recognize that there are exceptions which may allow the employer to consider termination as a last resort. However, many legal factors must be thought through (e.g., Are there reasonable accommodations which can be made for the disabled employee?). These legal factors are case-specific and details about the nature of work can result in different outcomes for different employees/employers. To illustrate, allowing an immunocompromised school teacher to instruct students online from home can be a reasonable accommodation and the ADA “might require an employer” to allow the teacher to instruct students online to avoid violating the act.[3] While on the other hand, it may create an undue hardship for the employer to allow an immunocompromised restaurant chef to work from home.
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To be clear, the facts of your case should be examined and discussed with your attorney before you can know with reasonable certainty whether termination will result in violation of the act.
If you’re an employer with questions about the rights of your company and your employees, we encourage you to contact Attorney Trey Ross or any lawyer with experience in employment law and/or employment litigation.
[1] 42 U.S.C. § 12102(1) (United States Code (2020 Edition)).
[2] Id.
[3] See e.g., U.S. Equal Emp’t Opportunity Comm’n, Work at Home/Telework as a Reasonable Accommodation (Dec. 13, 2020, 11:05 PM), https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation (providing “the ADA’s reasonable accommodation obligation…might require an employer to…modify its telework program for someone with a disability who needs to work at home).