By Fokussiert
The severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) outbreak continues to spread with an ever-increasing number of deaths and infected individuals. With the ease in which it spreads, authorities have imposed quarantines, such as on a cruise ship. But what happens if you have to miss work as a result of quarantine?
Quarantines: An Overview
The word “quarantine” comes from the Italian word for 40 days. The term can trace its roots back to Venice during the Black Death plague epidemic. During that time, authorities placed incoming ships in isolation for 40 days before its crew and passengers could join the general population.
Another term often used with quarantine is “isolation.” They are similar concepts, but different. Quarantine refers to the confinement of individuals who have been exposed (or may have been exposed) to a particular disease or illness. A person may be quarantined even though they do not have a communicable disease. Isolation refers to the separation of known sick individuals from those who are not sick. In other words, isolation applies when you are sick and quarantine applies you could be sick.
The Legal Basis For Quarantine And Isolation Powers
In the United States, the power to isolate and quarantine exists at both the federal and state level. Practically all states have laws in place that allow state and local health officials to enforce quarantine or impose isolation to prevent the spread of a communicable disease.
At the federal level, Section 361 of the Public Health Services Act, provides authority to the Centers for Disease Control and Prevention (CDC) to detain, examine and monitor individuals traveling into and within the United States who may have a communicable disease.
Officials from the CDC often work with state and local authorities to establish quarantine. Depending on the disease and the individuals involved, quarantines can last hours or weeks. For some, this may be a minor inconvenience. But for many others, this could affect not just their daily living, but their livelihood as well.
Federal Employment Protections When Under Isolation Or Quarantine
If you’re placed under quarantine or in isolation for an extended period, you may wonder if you’ll still have a job when you’re finally released. There are two primary federal laws that can address this situation: the Family and Medical Leave Act of 1993 (FMLA) and the Americans with Disabilities Act of 1990 (ADA).
The FMLA provides eligible employees with up to 12 weeks of unpaid, protected leave for qualified medical reasons. This includes taking care of your own “serious health condition.” The key question here is whether someone under isolation or quarantine has a serious health condition.
If you’re in isolation for the Coronavirus, you likely have a serious health condition. Therefore, you’re probably receiving inpatient care and ongoing medical treatment.
For someone in quarantine, things aren’t as clear. This is because quarantines apply to people who may not have any disease at all, but have restrictions placed on them for precautionary reasons.
At first glance, it appears that being in quarantine won’t qualify for FMLA leave. But after digging a little deeper, you can make the argument that being under quarantine counts as a serious health condition.
The FMLA regulations’ definition of a serious health condition includes a condition that requires inpatient care. Inpatient care is generally defined as spending at least an overnight stay in a medical facility, such as a hospital, hospice or residential medical facility.
If someone is under quarantine and they receive medical testing and monitoring that spans more than one day, it’s possible to argue that this qualifies as inpatient care. This may be true even if the monitoring, testing or observation is done on a cruise ship or in someone’s own home.
In most situations, if you are in isolation or quarantine and have FMLA leave available, you’ll likely be able to take it.
Concerning the ADA, it prohibits discrimination by covered employers against a qualified person with a disability. The ADA also requires certain employers to provide reasonable accommodations to disabled employees.
The question with the ADA is if being infected with the Coronavirus, or being suspected of being infected, qualifies as an ADA recognized disability.
To be considered an ADA disability, a person must have an impairment that substantially limits one or more major life activities or have a record of such an impairment. ADA protections can also apply to those who are regarded as having such an impairment. A major life activity includes things such as walking, sitting, reading, breathing and talking.
If you’re infected with the Coronavirus and are in isolation, you may qualify as having an ADA-recognized disability. The most single most important factor would be how serious your symptoms were. The more severe your symptoms, the more likely your Coronavirus infection counts as a disability under the ADA. If your Coronavirus infection qualifies as an ADA disability, your employer cannot fire you simply because you’re infected.
However, they can fire you if being in isolation prevents you from being able to do your job. For example, if your job requires you to physically be in the office, then being in isolation (and your severe symptoms) would prevent you from being able to accomplish your job duties.
But there’s the caveat of whether your employer can provide you with a reasonable accommodation. Assuming a reasonable accommodation can be made that doesn’t impose an undue hardship on your employer, then you probably can’t be fired because you are in isolation.
Depending on the circumstances, a leave of absence could qualify as a reasonable accommodation. And should you make a full recovery and wish to come back to your job, your employer can require you to provide a doctor’s note clearing you to return to work.
If you’re under quarantine, then you are not ill. Therefore, you do not have a disability. However, you are regarded as being disabled. As a result, you may have ADA protections with respect to employment discrimination. However, there is disagreement as to whether being “regarded as” having a disability legally requires an employer to provide reasonable accommodations (assuming it doesn’t result in undue hardship on the employer).
So it’s possible that even if your job duties would allow for it and it doesn’t create an undue burden, your employer may not have to provide you with leave or allow you to telecommute while you are under quarantine. But again, the law isn’t perfectly clear on this.
State And Local Employment Laws When Under Isolation Or Quarantine
Most states that have quarantine and isolation laws do not address whether an employer can fire an employee while under quarantine or in isolation. However, a few states do explicitly prohibit it.
For example, under Md. Ann. § Code 18-906(e), an employer may not fire an employee who is under isolation or quarantine as ordered by the Maryland government. A few other states have similar protections, such as Maine, New Jersey, New Mexico, South Carolina and Texas.
Another way for an employee to protect his or her job during a quarantine or isolation order is to have additional protected leave from work. While the FMLA provides up to 12 weeks of leave, some state or local laws provide more time, such as Washington, D.C.
Specifically, the District of Columbia Family and Medical Leave Act (DCFMLA) provides up to 16 weeks of medical leave for employees who need to deal with a serious health condition. Besides the extra four weeks of leave, another advantage of the DCFMLA over the FMLA is that it applies to more employees. The FMLA applies to employers with 50 or more employees while the DCFMLA applies to employers with only 20 or more employees.
Outbreaks And Telecommuting
One substantial difference between the Coronavirus and previous global outbreak threats is modern capacity for remote, online work. The utility of telecommuting positions has changed the question of whether one can perform the essential job functions of their position from home.
At the Spiggle Law Firm, for example, we commonly use programs like Slack, Zoom, PracticePanther, Dropbox, and of course email to successfully do work remotely which would have once been impossible. The more telework positions there are, the lower the risk of contracting diseases from coworkers.
In Closing
Hopefully, much of this above discussion is purely academic. But if the Coronavirus continues to spread, this might be something more and more employees and human resource departments will have to worry about.
One thing to keep in mind is that many people will have accrued personal, vacation or sick days they may be able to use in place of taking FMLA leave or asking for reasonable accommodations.
Then there’s also the fact that even if a business could fire you because you were in isolation or quarantine, it could create some negative publicity that your employer would be prudent to avoid.
This article is also published on Forbes.
