The novel coronavirus that causes COVID-19 has caused many novel employment law problems, too. The federal Equal Employment Opportunity Commission has issued guidance on the discrimination and harassment issues that might come up as a result of the pandemic.
Is COVID-19 a disability within the meaning of the ADA? At a March 27, 2020 webinar, the EEOC admitted that it did not know yet: “This is a very new virus and while medical experts are learning more about it, there is still much that is unknown…Therefore, it is unclear at this time whether COVID-19 is or could be a disability under the ADA.”
While the status of COVID-19 as a disability may be unclear, there is no doubt that an infected employee does present a direct threat to co-workers, vendors, customers, and others in the workplace. As a result, employers can ask medical questions that would otherwise be forbidden:
Are you experiencing symptoms of COVID-19 (fever, cough, shortness of breath, loss of taste or smell)?
- If yes, keep confidential, BUT you should inform employees of their possible exposure to the virus.
- You can send symptomatic employees home.
- Contact your local health department if one of your employees has been diagnosed with COVID-19.
In addition, employers can now take employees’ temperatures when they arrive at work. You may maintain a log, but all information must be kept confidential. And, be aware that some people with COVID-19 do not have a fever or any other symptoms.
Employers can even require employees to be tested for COVID-19. Consistent with ADA standards, employers should ensure that the tests are accurate and reliable. Employers can review guidance from the FDA, CDC, or other public health authorities about what may or may not be considered safe and accurate testing, and employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.
Employers can also ask if an employee has recently traveled out of the US, and if so, can send the employee home to self-quarantine for 14 days. Employee who refuse testing or temperature checks or to answer COVID-19 questions can be barred from the workplace, according to the EEOC.
In addition, fear of COVID-19 has led to discrimination and harassment against people because of:
- National origin
- Race
- Age
- Pregnancy
- Genetic information (family medical history)
So, for instance, barring Chinese or Italian employees from the workplace due to concerns about possible transmission of COVID-19 is illegal, since a pandemic is not an excuse for discrimination based on national origin. Similarly, an employer cannot postpone the start date or withdraw a job offer because the new hire is 65 years old or pregnant, both of which place them at higher risk from COVID-19. The fact that the CDC has identified those people as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date. Finally, since the Genetic Information Nondiscrimination Act (GINA)prohibits employers from asking employees medical questions about family members, EEOC says that a better question from a public health and workforce management perspective is whether a worker has had contact with anyone diagnosed with COVID-19, or who may have its symptoms.
What this means to you: Not even a pandemic can stop employment law!
With ongoing travel restrictions and companies asking employees to work remotely, we offer trainings both in the classroom and as highly-interactive webinars so your managers and employees can stay up to date on the employment law they need to know.
Updated 05-21-2020
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.