My name is Rob. I have worked as a full-time cashier for six months at a grocery store. I am a Type II Diabetic. My diabetes is uncontrolled. As a result of that condition, my chance of recovering from COVID-19 is much worse than a non-diabetic person. Recently, six co-workers (all of whom work the cash register like I do) tested positive for COVID-19. I told my manager that I am diabetic. I complained about the lack of disinfection and the store’s policy that prohibits employees from wearing face masks. My manager told me to suck it up! The following week, I spoke to my doctor about the unsafe conditions at work. My doctor faxed a letter to my employer stating that I needed to wear a face mask at work because of my diabetic condition. I went to work in a face mask that I had purchased. My manager fired me the same day for violating the “no face mask” policy. Have my rights been violated?
Yes. Rob has several claims against his employer. This post will focus on his claim under Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) of 1970 and his claims under the Americans with Disabilities Act (“ADA”) of 1990.
1. OSH Act
Section 11(c) of the OSH Act makes it unlawful for an employer to retaliate against an employee who complains about unsafe working conditions. Specifically, Section 11(c) “provides that no person shall discharge or in any manner discriminate against any employee because the employee has [f]iled any complaint under or related to the Act . . . [and] [e]xercised on his own behalf or on behalf of others any right afforded by the Act.” 29 C.F.R. Sec. 1977.3. A good-faith complaint to a manager about occupational safety and health matters is protected under Section 11(c). See 29 C.F.R. § 1977.9(c). To establish a claim under Section 11(c), an employee must show that: (1) he engaged in protected activity; (2) the employer took an adverse action against him; and (3) a causal connection exists between the protected activity and the adverse action.
Here, Rob can show that he was retaliated against. First, Rob engaged in protected activity by complaining to his manager about unsafe and hazardous working conditions (i.e., the lack of disinfection and the employer’s policy forbidding employees from wearing face masks). Rob’s complaint was made in good faith given that COVID-19 is easily transmitted and six co-workers had just tested positive for COVID-19.
Second, Rob’s employer took an adverse action against him by firing him. Third, there is a strong causal connection because Rob was fired one week after he complained to his manager about the unsafe working conditions.
In order to preserve a claim under Sec. 11(c) of the OSH Act, an employee must file a complaint with OSHA within 30 days after the adverse action. So, Rob must file a complaint with OSHA within 30 days of the day he was fired.
The ADA makes it unlawful for an employer to refuse to provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability. 42 U.S.C. Sec. 12112(b)(5)(A). To establish a claim for disability discrimination under the ADA, an employee must show that: (1) he is disabled; (2) he is otherwise qualified; and (3) a reasonable accommodation was not provided. Diabetes is considered a “disability” because it substantially limits endocrine function. 29 C.F.R. Sec. 1630.2(j)(3)(iii). An employee who can perform the essential functions of the job with or without a reasonable accommodation is considered a “qualified individual.” 29 C.F.R. Sec. 1630.2(m).
Here, Rob can show that he was discriminated against. First, Rob has a “disability” (i.e., Diabetes). Second, Rob could perform all aspects of his job with a reasonable accommodation in the form of a face mask to limit his exposure to COVID-19. Third, Rob’s employer refused to accommodate him and fired him.
An employer who retaliates against an employee for requesting a reasonable accommodation violates the ADA’s anti-retaliation provision. 42 U.S.C. Sec. 12203. To establish a claim for retaliation under the ADA, an employee must show that: (1) he engaged in statutorily protected conduct; (2) he suffered an adverse employment action; and (3) there is a causal link between the two. A request for accommodation is “protected conduct.”
Here, Rob can show that he was retaliated against. First, Rob engaged in “protected conduct” when he requested to wear a face mask. Second, he suffered an adverse action when his employer (a) denied his accommodation request and (b) fired him. Third, there is a strong causal link because Rob was fired for wearing a mask, which was the very conduct for which he sought an accommodation.
In order to preserve a claim under the ADA, an employee must file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 days from the day the bad action took place. Here, the employer’s refusal to accommodate Rob and Rob’s termination are separate “bad actions.” So, Rob must file a Charge with the EEOC within 180 days of the day his employer refused his accommodation request and within 180 days of the day his employer fired him.
If you have been wrongfully terminated due to COVID-19, please contact us.