Employee’s Suit Over Possible Termination Due to COVID-19 Moves Forward

Employment Law


An employee who was allegedly terminated for taking several days of medical leave for a respiratory illness that could have been COVID-19 can move his lawsuit forward, a New York federal court has ruled.

Graphic designer Anthony Velez became sick in late February 2020. He tested negative for the flu and suffered from significant respiratory symptoms. Although he was concerned that he might have COVID-19, he was unable to obtain a COVID-19 test due to the limited nature of testing at the time.

Due to his illness, Velez missed work at Girraphic from February 21 through February 28. He returned to work on March 2 but had to miss another day of work due to a doctor’s appointment. When he returned on March 6, he was called in to meet with his manager and a human resources representative. He was sent home after the meeting and was told “the company [would decide] what to do about his employment over the weekend.”

Velez was officially terminated a few days later and filed suit. He claimed that his severe respiratory illness was a disability as defined under the New York City Human Rights Law (NYCHRL) and that his termination was discriminatory. He also included claims for wage and hour violations.

In his complaint, Velez noted that he repeatedly suggested the company make additional efforts to prevent the spread of COVID-19, particularly because Girraphic’s employees participated in significant international travel. He also posted on the company’s Slack channel about COVID-19 and the need to take precautions.

Girraphic moved to dismiss the lawsuit. It argued that Velez lacked standing because he couldn’t meet the amount-in-controversy requirement and that he failed to plead sufficient facts to state a claim.

U.S. District Judge John P. Cronan rejected both arguments, denying the motion.

The complaint clearly alleged that Velez suffered emotional distress, requesting both punitive and compensatory damages, the court said. Even garden-variety NYCHRL cases generally merit $30,000 to $125,000 awards, so Velez’s allegations satisfied his jurisdictional threshold.

As for his discrimination claims, Velez alleged sufficient facts to state a claim, Judge Cronan determined.

“He has alleged that he had a disability in the form of a serious respiratory virus that may have been the result of COVID-19,” the court wrote. “He also contends that his employer, Girraphic, knew of this disability, or at least perceived that he had a disability. Velez alleges that his employer was ‘angry at [him] for being ill and for being away from the office due to illness, as well as for [Velez’s] having tried to inform others in the company of the seriousness of COVID-19 and the need for the company to take action,’ and, after chastising him multiple times, terminated him for taking a medical leave.”

Velez further alleged sufficient facts to support a plausible claim that Girraphic denied him a reasonable accommodation and retaliated against him for requesting one, Judge Cronan said.

Although Girraphic made “a litany” of arguments for dismissal of Velez’s discrimination claims, they “largely amount to disagreements with Velez’s view of the facts,” the court said, and “all facts in the complaint must be assumed true, and all inferences must be taken in Velez’s favor.”

Velez’s labor law and contractual claims reached a similar result, as “Girraphic again simply argues that its own view of the facts does not support Velez’s claims,” Judge Cronan wrote.

The court denied Girraphic’s motion to dismiss as well as its alternative motion for summary judgment.

To read the opinion and order in Velez v. Girraphic LLC, click here.

Why it matters: The court was not persuaded by the employer’s motion to dismiss, which it found consisted mainly of factual disputes that were inappropriate for determination at the early stage of litigation, moving forward the former employee’s claims.

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