As workplaces plan to re-open, employers should heed new COVID-19 related guidance from the Equal Employment Opportunity Commission (EEOC). As the guidance makes clear, responding to COVID-19 is ripe with potential to run afoul of State and federal discrimination laws.
Here’s what employers need to know:
Disability-Related Inquiries. Employers may never ask detailed questions about an employee’s illness or disability. However, employers can ask employees to disclose whether they have COVID-19 symptoms. If an employee has COVID-19 related symptoms, s/he can (and should) immediately be sent home.
Medical Exams. Employers are permitted to take the temperature of employees and have employees complete a COVID-19 test before returning to work. Employers can read more about this here.
Requiring Medical Documentation. If an employee is home because s/he displayed COVID-19 symptoms, or was possibly exposed to COVID-19, employers can require a doctor’s note from an employee returning from being sick. The EEOC encourages employers to be lenient in the form of the note.
Confidentiality of Medical Information. Most employers are not required to comply with HIPAA. However, like other employee medical information, COVID-19 diagnosis and symptom information needs to be kept confidential. Employers must take precautions to protect this confidentiality including, for example, storing health-related information in a file other than an employee’s regular personnel file. If an employer wants to create a separate, confidential medical file for COVID-19-related information, like daily temperature logs, they can.
Practice Pointer: If an employee is diagnosed with COVID-19, the employer can disclose the employee’s name to a public health agency.
Hiring & Onboarding. Before hiring an employee or after a conditional offer, an employer can screen an applicant for COVID-19-related symptoms or take their temperature. If an applicant has COVID-19 symptoms, their start date can be delayed. If an employer needs someone to start immediately, and the person who was offered the position has COVID-19 symptoms, the employer can withdraw the offer.
Displaying COVID-19 symptoms or having a COVID-19 diagnosis is different than simply being in an at risk category. An employer must not delay the start date or withdraw an employment offer solely because of a person’s age, disability (including pregnancy) or because they are in a protected category that puts them at a higher risk of contracting COVID-19.
Requests for Accommodation. If a person with a disability asks for a reasonable accommodation because s/he is particularly vulnerable to COVID-19 because of his/her disability, employers should engage in the interactive process to determine whether a reasonable accommodation is possible under the circumstances. Some possible accommodations that are recommended by the CDC include teleworking, restructuring, and reducing contact.
Employers also should keep in mind that an employee who has a pre-existing mental illness or disorder that has been exacerbated by the COVID-19 pandemic also may be entitled to a reasonable accommodation absent undue hardship to the employer.
For all requests for accommodation, employers may: (1) ask questions to determine whether the reported condition is a disability; (2) ask how the requested accommodation would assist the employee and enable him/her to keep working; (3) explore alternative accommodations that may effectively meet his/her needs; and (4) request medical documentation if needed.
Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics. Employers must continue to enforce their existing anti-discrimination and anti-harassment policies. As employees return to work, this is an opportune time to remind them that workplace discrimination and harassment is against the law and that harassment of co-workers will result in discipline.
If you’re an employer with questions about navigating the changes and challenges that COVID-19 has brought to the workplace, contact us. Our team of experienced attorneys is available to help you.
