Lingering Employment Discrimination Issues Arising During the Pandemic

As workplaces continue to reopen after pandemic-related closures, have you heard others express concerns about going back to work? Many employees and employers are expressing trepidation about returning to the workplace, particularly for employees with preexisting conditions or in high-risk groups. If employers are not careful, they may invite an Americans with Disabilities Act (ADA) suit by requiring employees to report, or unfairly denying a request for a reasonable accommodation. Additionally, creating different guidelines for return based on protected classes (like age) also creates the risk of an Equal Employment Commission investigation or lawsuit.

Fortunately, the Equal Employment Opportunity Commission has released several statements intended to guide employers in developing return-to-work policies and in rolling out those programs. Let us give a brief overview of what you need to know:

• Employers can require fever checks for their workers and ask if they have recently experienced symptoms of COVID-19. While normally medical information is off-limits for employers, because the Centers for Disease Control recommend that workers with symptoms of COVID-19 should stay home, employers can screen for those symptoms and send home workers who have them. Employers, however, must ensure that these measures are carried out equally, for all employees. If testing is implemented in such a way that people of certain demographics are tested to a greater degree (for example, people over the age of 50, or people of Asian descent), discrimination laws will permit these employees to challenge the screening.
• Information gathered from these screenings can be stored, so long as confidentiality is maintained. All medical information must be kept confidential. Additionally, an employer may not inquire about whether a family member has been diagnosed.
• Employers can require employees to comply with safety precautions recommended by the CDC, including wearing facemasks and remaining 6 feet apart. If your state or city has imposed additional precautions, an employer can also require such precautions of employees. Again, this must be a rule that applies to each and every employee in the same manner, without singling out anyone.

For more guidance on pandemic related employment discrimination issues, our experienced team of local attorneys is here to answer your questions. We know local experience matters! You may call, chat, or contact us at any time. Put our team to work for you!