Robert G. Brody and Katherine M. Bogard
As an employer, you feel responsible to prevent the spread of measles in the workplace. But the last thing you want is legal backlash. Here’s a list of tips to consider as you navigate this issue.
The Land Mines
- Retaliation
Employees may take leave under the federal Family Medical Leave Act (“FMLA”) to care for their affected child or for themselves (under the New York State Paid Family Leave law, employees cannot take leave to care for themselves but can for family members). Upon their return, the employer must ensure the employee is returned to the same or equivalent job. An equivalent job is a job that is virtually identical to the employee’s original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). If the employee is not returned to the same position, they have grounds for a retaliation claim (in most cases).
Additionally, the remainder of the workforce may be unhappy about their exposure to measles. This may lead them to treat the affected employee differently. For instance, a supervisor might decide to give the employee less hours, a different schedule, or exclude them from promotion opportunities. This conduct is grounds for a retaliation claim. The employee will argue the reason they are being treated differently is because they took FMLA.
- Harassment
Another concern is the outbreak is heavily impacting the Orthodox Jewish community. This may make your employees inclined to have hostility towards Orthodox Jewish employees regardless of whether they are impacted by the measles or not. This may occur via inappropriate comments or actions by employees.
This may cause the Orthodox employee to pursue a religious discrimination claim. The employee will argue the only reason they are being treated differently is because they are an Orthodox Jew.
- Associational Disability Discrimination
As we mentioned in Part 2 of the series, there is some question as to whether or not measles is a disability under the Americans with Disabilities Act (“ADA”). However, assuming it is, the employee may have a claim for associational disability discrimination if they are treated differently based on their connection to an individual with the measles. This claim may arise if employees: refuse to work with someone whose child is affected; call the employee names; or exclude the employee from meetings because they are associated with someone who has or recently had measles. The employee may argue this treatment is because of their connection to the disabled individual. This set of facts is ripe for an associational disability discrimination claim.
Employer Takeaways
Administrative charges and litigation filed by employees can be quite costly for employers. Aside from the business interruption lawsuits invariably bring, it costs time and money to defend these claims. If the employee ultimately prevails, attorneys’ fees are usually awarded as well as back wages and benefits, and potentially a host of other damages such as emotional distress or punitive damages.
Even if your employees do not pursue legal claims, tensions among employees over controversial issues like the measles outbreak is bad for business. Angry, annoyed, or unhappy employees are not productive employees. Therefore, employers would be wise to monitor this issue closely.
Robert G. Brody is the founder and managing member of the law firm Brody and Associates, LLC. Katherine M. Bogard is an associate at the firm. The firm represents management in all Labor, Employment, and Benefits law issues.