Caleb Patterson, left and Rob Wiley

As employees are called back to work, those with pre-existing conditions are increasingly consulting with attorneys about employers’ threats

DAVID TAFFET | Senior Staff Writer
taffet@dallasvoice.com

Three attorneys who deal with employment discrimination litigation agree on one thing: Calls are up. And members of the LGBT community are particularly vulnerable to that discrimination. Many employers wanting to thin the herd are beginning with those whose sexual orientation they may not care for, while employers seem to have developed a renewed fear of HIV.

“I’m surprised by the number of calls I’ve been getting,” said employment attorney Rob Wiley.
He said a number of those calls have been from people who live with someone that puts them at risk of infection by the COVID-19 virus. Those with a compromised immune system, diabetes or people older than 65 are those who have the most to worry about infection from the coronavirus.

Wiley described three different types of situations he’s gotten calls about. Some people, he said, are being singled out or not being accommodated because of some type of disability. Other calls are from employees worried about their work reopening. And others are calling about safety issues at work.

Wiley said he is surprised by the variety of employment issues he’s been hearing about. What confuses the issue more are different agencies interpreting employment laws differently.

“And Texas is a work at will state,” he added, explaining that means employers can fire an employee at will, without cause, as long as no federal discrimination laws are broken.

So, if an employer calls you back to work, you either return to work or forfeit your job. Or do you?
Before opening the state for business on May 1, Gov. Greg Abbott issued new guidance for people receiving unemployment benefits: “Texans can continue to receive unemployment benefits throughout the COVID-19 response if they choose not to return to work for certain reasons as specified by TWC,” the governor’s office announced in a press release.

Those certain reasons include being at high risk because they are 65 years of age or older, have a household member at high risk due to age or are at high risk due to other factors. Someone with a compromised immune system would fall under those high-risk factors.

According to Lambda Legal attorney Shelly Skeen, people receiving cancer treatment or who have a number of infections, including HIV, are included in that group. She said people who are HIV-positive are also covered under the Americans with Disabilities Act.

Doctors seem to agree that not everyone with HIV is at high risk. Someone whose viral load count is undetectable appears to be at the same risk for contracting coronavirus as the population in general. But someone whose viral load count isn’t completely under control or who hasn’t rebuilt their immune system may be unable to fight the virus.

Skeen said she’s also seen an uptick in people calling Lambda Legal’s legal help desk from people being called back to work.

The ADA prevents employers from asking about an employee’s specific health conditions, and employees aren’t required to divulge their health conditions. Specifically, people in the LGBT community who are HIV-positive do not have to tell an employer their status since that could lead to discrimination based on sexual orientation — whether the person is LGBT or not — along with HIV-related discrimination.

Even though restaurants are allowed to operate at only 25 percent of capacity, based on their occupancy permit, some restaurants are insisting all employees return to work despite legitimate health concerns.

Wiley agreed that under the ADA, an employee doesn’t have to reveal his health status. A letter from a doctor stating that the employee has an underlying health condition and shouldn’t be at the workplace might be sufficient, he said.

Wiley also said a person may have a compromised immune system because of chemotherapy, immunosuppressant drugs after a transplant or because of HIV. But if an employer were to make an educated guess about what underlying condition the employee has, that employee just outed himself as gay and HIV-positive.

Under the ADA, an employer must make “reasonable accommodation” for an employee with a disability. So, if someone can work from home without substantially affecting their job, the employer must allow that.

“Working remotely is a reasonable accommodation,” Wiley said. “But not everyone can do their job remotely,” such as, for example, a waiter. And, he added, “If you can’t do your job, you risk being fired.”

Employment attorney Caleb Patterson, who has also seen an increase in discrimination calls coming into his office, said the newly passed Families First Coronavirus Response Act helps in that area, because it offers emergency paid sick leave and applies to private sector employers with fewer than 500 employees, which includes most restaurants.

Most employment legislation, such as the Family Medical Leave Act, exempts smaller employers. The FFCRA specifically targets them.

“If you’re especially vulnerable, it provides two weeks paid sick leave,” Patterson said. “Up to $511 per day or a total of $5,110.”

Once the two weeks are up, the employee either needs to go back to work or apply, if eligible, for unemployment.

Patterson said reasonable accommodation for retail sales staff would be a transfer to an overnight position restocking shelves or working off the sales floor receiving inventory.

A cashier should expect the employer to make an effort to provide some safety equipment by installing a plexiglas shield between customers in line and the register.

“But in the service industry, nothing allows for a waiter not to interact with the public,” Patterson said.
The paycheck protection portion of the CARES Act requires employers to pay everyone. So, if some employees are let go, the money must be repaid.

And with all these confusing new and, in some cases, contradictory regulations, what if an employer is caught making mistakes while trying to follow the law?

Patterson said if an employer acts in good faith and has consulted an attorney, he thinks regulators will be lenient. But that includes erring on the side of working with employees claiming disability.
Wiley said people with HIV have the ADA as a base to cover discrimination charges. Most discrimination lawsuits require the employer to have done something such as harassment or creating a toxic work environment. Under the ADA, an employer can be in violation by doing nothing — failing to make a reasonable accommodation for an employee.

He warned, though, that if you don’t have a legitimate exemption, and your employer wants you back at work, you don’t qualify for unemployment.