Anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the American with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, and the Genetic Information Nondiscrimination Act of 2008, serve to protect against work-place discrimination. Lawsuits are commonly filed by employees against employers who engage in discriminatory or retaliatory actions against employees in violation of these laws. But where does COVID-19 fit into these laws, if at all? Can an employer require that employees submit to temperature checks before physically entering the workplace? Can an employer refuse to allow an employee to work if the employee refuses to submit a temperature check or to answer questions related to their potential COVID-19 exposure? Is COVID-19 a disability under the American with Disabilities Act? If you are an employer or have a client who is an employer, you should know how to navigate through these and other unchartered issues in order to avoid being sued.
In an effort to provide guidance on these and other questions, the U.S. Equal Employment Opportunity Commission released a webinar on March 27, 2020 and provided answers to questions submitted by the public about how to deal with COVID-19. In general, the EEOC has stated that all anti-discrimination laws continue to apply, but “do not interfere with or prevent employers from following CDC or state/local health authori-ties’ guidance” related to COVID-19. Below are some of the high level “dos and don’ts” and other important issues that the EEOC shared – but beware, these are based on the current situation and the answers provided may change as circumstances change:
WHAT EMPLOYERS CAN DO:
- Employers can ask employees that will be physically entering the workplace if they have COVID-19, symptoms associated with COVID-19, or whether they have been tested for COVID-19.
- Employers can exclude from the workplace those employees with COVID-19 or associated symptoms because their presence poses a direct threat to health or safety of other employees.
- Employers can exclude from the workplace those employees who refuse to answer questions regarding their COVID-19 exposure or who refuse to have their temperature taken.
- Employers can ask employees whether they have had contact with anyone diagnosed with COVID-19 or anyone with COVID-19 symptoms. (However, asking an employee about a family member’s medical conditions remains prohibited by GINA.)
- Employers can inform appropriate employer officials of the identity of an employee with COVID-19 in order to allow them to take action based on CDC and other public health guidance but must require that such officials keep such information strictly confidential.
- Employers can notify public health authorities if one of their employees has COVID-19.
WHAT EMPLOYERS CAN’T DO:
- Employers can’t single out an employee to ask about COVID-19 or for temperature checks unless the employer has a reasonable belief based on objective evidence that this person has COVID-19. The EEOC stated that a persistent hacking cough may provide a reasonable basis, but the fact that an employee is distracted would not be reasonable basis.
- Employers can’t broadly disclose an employee’s medical information (including COVID-19 related information) within an organization. Even when an employer needs to inform certain employees that they may have been in contact with an employee diagnosed with COVID-19, the name should not be disclosed.
- Employers can’t exclude from the workplace (i.e. require telework or put on involuntary leave) persons 65 or older or pregnant women simply because they are in a higher risk group identified by the CDC.
- Employers can’t single out employees based on national origin and exclude them from workplace due to concerns about possible COVID-19 transmission.
- Employers can’t ask employees who are teleworking COVID-19 related questions unless they are physically interacting with coworkers.
OTHER IMPORTANT ISSUES:
- The EEOC was unable to provide an answer as to whether COVID-19 is or could be a disability under the ADA, as there are many unknowns about the virus.
- So long as employers treat all employees alike, employers have no obligation to grant an employee’s request to telework simply because they are 65 or older, pregnant, or in some other group identified as high-risk for COVID-19. If requests for telework, leave and other accommodations, however, are triggered from other ADA rights, employers can verify existence of disability, question the need and type of accommodation being requested, and evaluate whether the accommodation presents an undue hardship for the employer.
- Employee is not entitled to request an accommodation solely because employee lives in the same household with a high-risk person.
- Although employers may have allowed teleworking as a temporary accommodation to slow or stop the spread of COVID-19, employers do not have grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement.
The EEOC’s guidance is much appreciated in these novel areas, yet the remaining unknowns and ever-changing landscape almost ensures litigation in the months and years ahead. For now, the best way employers can minimize risk of litigation based on COVID-19 is to closely monitor and follow guidance from the EEOC, CDC, and other public health authorities, and when feasible to maintain as interactive and flexible of an approach as possible with its employees.