The COVID-19 virus is posing new challenges for employers, including the need to balance employers’ obligations and employees’ rights during this unprecedented pandemic.
Through its Q/A-formatted webinar on March 27, 2020, the Equal Employment Opportunity Commission (“EEOC”) advised employers how to balance employers’ obligations and employees’ rights under the laws enforced by the EEOC, including the Americans with Disabilities Act (“ADA”), the Genetic Information Non-Discrimination Act (“GINA”), the Age Discrimination in Employment Act (“ADEA”), sections 501 and 505 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).
Key Takeaways & Guidance
- The EEOC in its Updated 2020 EEOC Pandemic publication stated employers may measure the body temperatures of their employees to detect the potential for COVID-19 virus. Employers may also ask employees if they have the COVID-19 virus, if they are experiencing symptoms of the COVID-19 virus, or if they have been tested for the COVID-19 virus. Employers may exclude employees who have the COVID-19 virus or symptoms from the workplace because they pose a threat to the health or safety of other employees or customers. Logically, this advice does not apply to teleworking or remote employees.
- If an employee refuses to answer questions about whether he or she has the COVID-19 virus, whether he or she is experiencing symptoms of the COVID-19 virus, or whether he or she has been tested for the virus, or if the employee refuses to permit the employer to take his or her temperature before entering the workplace, the ADA allows an employer to bar the employee from the workplace. Employers are advised to ask the employee for his or her reasons for refusing the medical examinations and to reassure the employee the ADA prohibits the employer from unlawfully disclosing the information.
- Before asking a single employee (as opposed to all employees) to submit to a medical examination, such as measurement of the employee’s body temperature or answering the questions above, the employer must have a reasonable belief or objective evidence that such employee may have the COVID-19 virus.
- Instead of asking an employee coming into the workplace if he or she has family members with the COVID-19 virus or symptoms, employers should ask the employee if he or she has come into contact with anyone that may have the COVID-19 virus or symptoms. The question should not be framed around certain groups of people.
- If an employer learns and confirms an employee has the COVID-19 virus or symptoms associated with the virus, the employer must make every effort to limit the number of people that know the identity of the employee. People within the organization who are told the identity of the individual (such as a Human Resources representative or the person’s manager) must be informed the information is and must remain confidential. For example, the employer may inform people who came into contact with the employee that they came into contact with someone with COVID-19, but they may not be told who the person is. Employers need to plan ahead who will be responsible for taking this information and for taking next steps. The employer must safeguard this information to the greatest extent possible.
- The ADEA prohibits employment discrimination against workers 40 years and older. For example, an employer may not exclude from the workplace an employee who is 65 years of age or older, who does not have the COVID-19 virus or is not experiencing symptoms associated with the virus, solely because of the employee’s age. Additionally, the ADEA does not have an accommodation provision like the ADA, and therefore the employer is not required to grant a request to telework from an employee who is 65 years old or older simply because the CDC says older people are at a high risk of contracting the virus; however, an employer may choose to do so, if it wishes.
- Title VII prohibits all employment discrimination based on race and national origin, and it does not matter if the treatment is linked to the COVID-19 pandemic.