Attitude Matters: Importance of Not Conveying Frustration with COVID-related Leaves

Employers receive requests for leaves of absence/intermittent leave as an accommodation for an employee’s own health condition, requests for leaves of absence in order to care for a family member with a serious health condition, requests for leaves of absence in order to provide supervision of a child whose school is closed, among other reasons. Depending on the circumstances related to the request, it may implicate decades old state or federal laws, such as the New York State Human Rights Law, the Americans with Disabilities Act or the Family and Medical Leave Act. In addition, such requests may implicate more recently enacted state or federal laws passed in response to the COVID-19 (COVID) pandemic.

Employers receive requests from employees for various types of accommodations, some of which may be specially related to COVID. Some requests for a leave of absence/intermittent leave constitute examples of a request for an accommodation so as to call for an interactive dialog, whereas other requests for a leave of absence involve an employee exercising a legal right, rather than being an example of an accommodation request, per se.

The COVID pandemic has resulted in employers having to deal with issues they never would have imagined previously. These issues will frequently include personnel matters, which may also implicate complicated logistical operational considerations. Human nature being what it is, it is to be expected that supervisors having to address the myriad issues arising from the COVID pandemic may convey frustration on occasion.

Whether a request for an accommodation/leave is COVID related or not, if the request is potentially subject to a federal or state law, that law includes provisions that make it unlawful to retaliate against someone for seeking the accommodation/leave. It is very important that supervisory staff at every level are cognizant of the potential for retaliation claims by employees who may believe that their request for an accommodation/leave resulted in some type of subsequent adverse employment action. Retaliatory employment actions include a failure to obtain tenure, a suspension, a change in assignment or other types of clear employment actions. Harassment can also constitute a type of adverse employment circumstance that may support a retaliation claim where it is related to a prior request for accommodation or use of leave time.

Retaliation claims are generally proven by circumstantial evidence. Such circumstantial evidence may include a close temporal proximity between the request for an accommodation or use of an accommodation, and the adverse employment action. Circumstantial evidence may also include a change in the manner in which a supervisor interacts with an employee or verbal or written statements that tend to indicate that a supervisor was angry that an employee required an accommodation/leave. If an employee hears, reads or otherwise learns about something said/written by a supervisor that indicates hostility relating to a specific request for an accommodation/leave or about such requests in general, the employee may conclude that a supervisor harbors animosity in relation to such requests. If an employee believes a supervisor harbors such animosity, the employee is far more likely to interpret subsequent adverse employment actions as constituting retaliation following such a request.

Whether it be casual conversation, the contents of a letter, email, or social media post, supervisory staff and members of a Board of Education must be careful to avoid making statements that indicate frustration or hostility relating to employee requests for accommodations/leaves of absence/intermittent leave provided for under state or federal law. In addition to using caution in regard to the literal content of communications, it is also important to pay attention to the tone of communications relating to such requests.

When communicating about requests for accommodations/leave, supervisors and Board Members should be aware that their words, especially, their written words, could be used against them in support of a retaliation claim. A snarky email to a fellow supervisor referencing a specific accommodation/leave request, or even referencing such requests more generally, might merely be an example of a stressed-out supervisor blowing off steam. However, in the context of litigation or an administrative proceeding involving a claim of retaliation, such communications could prove very problematic to the defense of the case. Conversely, if an employer can show that the manner of communication pertaining to such requests is respectful, sympathetic and cooperative, this could very much facilitate the successful defense of a retaliation claim. Further, if an employer is careful about their language and messaging regarding such requests, that could go a long way in reducing the likelihood an employee would suspect retaliation in the first place, so as to avoid a legal proceeding from being filed at all.

As school districts struggle to respond to a constantly changing operational and legal landscape, it is important to be cognizant of the language and tone used in relation to requests for and/or the general subject of, accommodations/leave to try to prevent a perception of hostility in relation to such requests. A perception of hostility increases the likelihood that employees will conclude a retaliatory motivation for subsequent employment actions and pursue legal action. The language and tone used in relation to requests for accommodations/leave should endeavor to convey a message of respect for employees as well as the laws that pertain to such requests. This best practice should facilitate good employee moral and reduce the likelihood of retaliation claims.

Should you have questions about this topic, please feel free to contact Charles E. Symons, Esq.