Dealing with the COVID-19 pandemic has brought new challenges to Employers with new federal and state laws that create both obligations and opportunities to help workers and businesses get through the crisis. In dealing with these new challenges, Employers should take care not to violate long-standing employment laws that could lead to costly claims of discrimination. Below are some concerns that will be common in the workplace arising out of the pandemic. Most involve considerations under the Americans With Disabilities Act (ADA). Employers should reinforce with managers the need to take care in dealing with COVID-19 issues arising in this new environment. The guiding rule should be to treat employment issues caused by the Virus as they would be treated if caused by some other injury or illness. Below are some specific scenarios that Employers are likely to face, and some do’s and don’ts as to how they should be handled.
Employers are rightfully concerned with protecting workers from exposure to the Virus in the workplace. This concern could lead to making unlawful medical tests or medical inquiries in violation of the ADA or the Genetic Information Nondiscrimination Act (GINA). Employers may require employees coming to a worksite to submit to having their temperature taken but, if they do so, all employees must be tested or discrimination claims could arise. Likewise, Employers may inquire of all employees reporting to a worksite (but not of teleworkers) if they have any symptoms of COVID-19, have been diagnosed or treated for it, or have associated with anyone diagnosed with it. Employers should avoid inquiring specifically about family members as that could violate GINA. Employees who refuse to have their temperature taken or answer such questions may be barred from the workplace.
If an employer does not seek to take the temperature or ask such questions of all employees coming to the worksite, it can do so as to a particular employee only if the Employer has a reasonable belief based on objective evidence that the employee might be infected. For example, if the employee had a persistent cough or complained of a fever, the Employer could ask a general question such as, has the employee seen a doctor or associated with a person diagnosed with the Virus. Further questioning or action would depend on the answer to the general question.
Employers must remember that all medical information must be kept confidential on a need to know basis and separate from other personnel information. This can be challenging with employees teleworking, but when that ends, Employers should be sure that medical information on computers is placed in the proper file and the information removed from any computer to which a person not having a need to know medical information has access. If a worker is identified as having COVID-19, the Employer may notify other workers or third parties who have been exposed to that worker that they have been exposed to someone who has the Virus, but they may not be told the identity of the worker having the Virus unless they have a need to know that identity. Notification to public health authorities is permitted.
Issues with workers who have a heightened susceptibility to the Virus are likely to arise. An employer may not discriminate against a pregnant woman or an older worker on the assumption that they are more susceptible to the Virus. On the other hand, if an older worker, a worker with a compromised immune system or a pregnant worker requests a reasonable accommodation because of a greater susceptibility, the Employer might have to make such an accommodation. Each situation is different, and Employers should consult competent employment counsel. Although the EEOC has not yet opined that COVID-19 is itself a disability (but stay tuned), it is clear that conditions arising from the Virus or other health factors can implicate the ADA. Although Employers might have a duty to accommodate an employee who has contracted the Virus or who is at greater risk of contracting it, Employers have no duty to accommodate a worker who lives with a person subject to a greater risk of contracting COVID-19. Likewise, an Employer has no duty to accommodate any worker by eliminating an essential function of a worker's job.