Employment and Harassment Law in the Time of Corona Virus
COVID-19 has affected everyone in the US in a drastic way. It has caused a huge loss of life and an upset of almost every single persons daily life. With employment being such a large part of our lives, it seems like nothing is business as normal. However, many countries are returning to work and regaining a semblance of normality.
Even in these scary times, we need to remember that we still have labor laws to follow. These laws will help us transition back into our normal workplace environments in a fair and safe manner.
During the outbreak, certain ethnic groups reported being the subject of discrimination, refused service, told to stay home from work (before quarantine), and harassed based on assumptions that they were more likely to have the virus due to race. We can not allow fear to cause us to discriminate. In the workplace, empirical evidence, not bias must be used to make safety judgements.
The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It has been updated as of March 19, 2020 to address examples and information regarding COVID-19; the new 2020 information appears in bold.
The EEOC has also addressed more accommodations for employees that are at higher risk for serious illness due to COVID-19.
All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
- The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act.
- The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
- The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:
Pandemic-Related Harassment and Discrimination Due to National Origin, Race, or Other Protected Characteristics
What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic?
Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.
Practical anti-harassment tools provided by the EEOC for small businesses can be found here:
- Anti-harassment policy tips for small businesses
- Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
- report;
- checklists for employers who want to reduce and address harassment in the workplace; and,
- chart of risk factors that lead to harassment and appropriate responses.
Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace?
Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.
Return to Work
As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace?
The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Direct threat is to be determined based on the best available objective medical evidence and must never be based on race or other protected categories. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.
For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.
Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics such as race in decisions related to screening and exclusion.
An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests?
An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).
However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible. The accommodation should not cause an undue hardship on the operation of the employer’s business under the ADA or Title VII.
CA Employment Law & COVID-19
California’s state constitution contains an express right to privacy that is generally understood to encompass actions by private individuals and entities which violate a privacy right. California courts, in turn, have held that this right to privacy extends to an individual’s medical information. Not only would an employee’s right to privacy be one reason employers should carefully consider and consult legal counsel before requiring a medical examination to test for COVID-19 (as further discussed below), but in the event an employer receives any information about an employee’s medical condition – like a positive diagnosis of COVID-19 – the employer must take care to keep such medical information confidential and separate from the employee’s personnel file, as required under federal and California law.
California’s right to privacy, however, does not prohibit employers from asking employees if they are planning travel or have traveled to areas with a high risk of exposure to the corona virus. Further, employers do not violate an employee’s privacy interest if the employee voluntarily discloses medical information to the employer without any solicitation.
We will be returning to work soon!
Everyone must remember to do this in a fair and safe way. Just because times are uncertain does not change the fact that discrimination is wrong. Employers can follow the EEOC’s guidelines to make our transition back into normal life as smoothly as possible.
Everyone stay safe out there. We will see you back in the office, restaurants, streets, or whatever your respective workplace may be SOON!
