COVID-19 | 

10 Practices That Could Land You in Hot Water During COVID-19

Federal, state and local laws prohibit employers from discriminating against individuals because of race, national origin, sex, pregnancy, disability, and certain other characteristics. During the COVID-19 pandemic, employers must navigate all employment decisions – including those related to layoffs, rehires, and leave – without violating these laws. Here are 10 problematic practices related to COVID-19 that may violate nondiscrimination laws:

Problematic Practice #1: Excluding from the workplace an employee who is pregnant or 65 years or older, solely because such groups may be at a higher risk of severe illness if they contract COVID-19.

Reason: Federal, state and local laws prohibit discrimination against workers on the basis of age and pregnancy. When navigating COVID-19, employers may not bar workers from the workplace, require them to telework, or place them on involuntary leave because of a potential increased risk of exposure. However, an employer may choose to offer the option of telework or other accommodations to older or pregnant workers, or to other workers who may have a need for such accommodations.

Problematic Practice #2: Excluding from the workplace an employee solely because they have a disability that places them at higher risk for severe illness if they get COVID-19.

Reason: In recent guidance, the EEOC stated that the Americans with Disabilities Act (ADA) doesn't allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing the employee at "higher risk for severe illness." Under the ADA, this action would be allowed only when the employee's disability poses a "direct threat" to their own health that cannot be eliminated or reduced by reasonable accommodation. This analysis cannot be based solely on the fact that the employee has a specific condition. Instead, employers must consider factors such as the severity of the pandemic in a particular area, the employee's own health and particular job duties, the likelihood that an individual will be exposed to the virus at the worksite, and the measures the employer is taking to protect its workers. Consult legal counsel when making this determination.

Problematic Practice #3: Failing to provide reasonable accommodations to individuals with disabilities.

Reason: The ADA and similar state laws require employers to provide reasonable accommodations to individuals with disabilities, unless doing so would impose an undue hardship on the employer. An employee with a disability that puts them at high risk for complications from COVID-19 may request a reasonable accommodation to reduce their chances of infection, such as asking to telework, for personal protective equipment, or for paid or unpaid leave if their job isn't conducive to telework. Additionally, if the employer requires employees to wear protective equipment, an employee with a disability may ask for an accommodation if they are unable to comply because of their disability. Work with the employee to provide an effective accommodation if applicable and consult legal counsel as needed.

Problematic Practice #4: Taking applicants' temperatures or otherwise screening applicants for COVID-19 before making a conditional job offer.

Reason: Under the ADA, employers must wait until after they extend a conditional job offer to an applicant to conduct medical exams, including taking temperatures and other screening for COVID-19.

Problematic Practice #5: Only screening potential new hires for COVID-19 if they are from areas with a higher incidence of COVID-19.

Reason: Under the ADA, if employers conduct medical examinations, they must do so for all entering employees in the same type of job (and only after extending a job offer). Only screening applicants or employees from a particular location may violate laws protecting individuals from discrimination based on race/and or national origin (see below).

Problematic Practice #6: Asking applicants where they live or have lived and refusing to hire applicants from places that have a higher incidence of COVID-19.

Reason: This practice may violate protections on the basis of national origin and/or race. Keep in mind that nondiscrimination laws generally prohibit employers from disparate treatment (treating applicants and employees differently because of a protected characteristic) as well as disparate-impact discrimination. Disparate-impact is when an employment practice seems neutral on its face but has a disproportionate effect on a protected group. Since the number of COVID-19 rates have tended to be higher in cities, and cities tend to have a greater mix of races and national origins, refusing to hire employees who live in cities may have a disparate impact based on those protected characteristics even if the employer didn't intend to discriminate.

Problematic Practice #7: Failing to take action when employees harass co-workers who are perceived to be from places where COVID-19 began or where COVID-19 is widespread.

Reason: In addition to prohibiting discrimination, federal, state and local laws prohibit harassment against individuals because of race, national origin, and other protected characteristics. Employers might see an increase in workplace harassment complaints related to COVID-19. Therefore, employers should remind employees of their anti-harassment policies. Take all complaints seriously and launch a prompt, thorough, and impartial investigation into any complaint.

Problematic Practice #8: Revealing the identity of an employee who has COVID-19 to co-workers.

Reason: The ADA requires employers to keep all medical information confidential, even if it isn't about a disability. States may have similar laws. If an employee is confirmed to have COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality (that is, don't reveal who has the illness).

Problematic Practice #9: Asking employees if one of their family members has/had COVID-19.

Reason: The Genetic Information Nondiscrimination Act generally prohibits employers from asking employees about their family's medical history. However, the EEOC says employers may ask employees whether they have had contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with COVID-19.

Problematic Practice #10: Refusing to hire/employ individuals who have caregiving responsibilities because they may need to take leave when schools, daycare, camps, and eldercare facilities are closed due to COVID-19.

Reason: Employment decisions based on an employee's caregiving responsibilities may implicate nondiscrimination laws, such as those that prohibit gender and family status discrimination. Make sure your reasons for rehire are based on legitimate job-related factors, and document your decisions for returning your employees to work.

Conclusion:

Employers must consider how various employment actions during the COVID-19 outbreak relate to nondiscrimination and other employment laws. Since guidance from fair employment agencies and public health authorities is likely to be updated as the pandemic evolves, be sure to follow the most current information.

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