Businesses across the country are considering how to reopen their doors and welcome employees back amid the COVID-19 pandemic, while putting employee safety first during an unpredictable time. When setting up your systems and protocols for bringing employees into the office, make sure to give deliberate thought to your process and procedures so as to not run afoul of anti-discrimination laws.
While what businesses can and must do varies region by region, there are a number of areas we recommend assessing—no matter where in the country you are located. Of course, you should always check with your local authorities for any regional requirements. Here, we’ll review key anti-harassment and anti-discrimination areas you should assess and evaluate when opening your workspace.
New COVID-19 protocols (Protective gear and infection control practices)
Workplace safety and sanitation practices
If your employees will be gathering in person, make sure you consider and communicate how employees can limit the spread and keep themselves and their colleagues safe. The CDC recommends social distancing and increased handwashing. Requiring workplace safety and sanitation practices is permitted under the ADA.
Consider adding a section to your employee handbook with hygiene and sanitation recommendations. This section could include the business’ cleaning plan, such as using EPA-approved disinfectants, minimizing the use of communal office equipment, and cleaning the workplace in case of an employee potentially being infected.
Encouraging personal protective equipment
The CDC recommends wearing cloth face masks to reduce the chance of transmission of COVID-19, and many state and local orders require it. An employer can require employees to wear personal protective equipment (PPE), such as face masks, gloves, or gowns. Consider including details in your employee handbook, such as where and when PPE must be worn, and having employees sign an agreement about your PPE policy.
However, if an employee refuses to wear PPE and needs a related reasonable accommodation under the ADA (e.g., non-latex gloves) or a religious accommodation under Title VII (e.g., modified PPE due to religious garments), you should provide alternate options. Consult with an attorney on how to do this.
Assessing reasonable accommodations
Individuals requiring reasonable accommodations
When opening your doors, be sure to consider all employees, including individuals with disability during a pandemic. According to the ADA, an employer may not prohibit an employee from returning to work because they are considered high risk unless the employee displays symptoms of COVID-19 or has a disability that poses a direct threat that cannot be reduced or eliminated by reasonable accommodation.
Some states have issued additional guidance related to reasonable accommodations during the pandemic, so check with your state and local regulations to see what’s applicable for your region. For example, employers in Washington are prohibited from failing to utilize all available options for alternative work assignments to protect high-risk employees.
The following employees are entitled to reasonable accommodations, under the EEOC:
- An employee already receiving accommodations may be entitled to additional or altered recommendations, absent undue hardship
- An employee with an underlying condition that puts the employee at a higher risk for severe illness as a result of COVID-19
- The ADA does not require an employer to accommodate for the needs of an employee’s family member or other person with whom the employee is associated
Types of reasonable accommodations
Prior to the pandemic, most reasonable accommodations did not pose a significant expense against the employer’s overall budget. Now, an employer may consider the constraints created by the pandemic (e.g., loss of income stream or discretionary funds) in weighing the cost of accommodation.
However, there are often low cost accommodations available. For example, a few such accommodations may include:
- Additional or enhanced protective measures (e.g., barrier between employee and others)
- Elimination or substitution of less critical job duties from essential functions of a position
- Modification of work schedules to decrease contact with coworkers or public
- Moving the location where one performs work to provide more social distancing
How to engage with employees who need accommodations
When an employer knows an employee has a condition that places them at a higher risk, the ADA does not require the employer to take action. However, if you are concerned about the employee’s health, you are not allowed to exclude the employee from returning to the workplace due to that disability and potentially being at a higher risk for infection. Such action is only allowed if the employee’s disability poses a threat to his health and a reasonable accommodation could not reduce that threat.
Screening and testing employees for COVID-19
According to the Equal Employment Opportunity Commission (EEOC), under the Americans with Disabilities Act (ADA), employers can ask about employees’ health or conduct medical exams if they could pose a direct threat to health and safety, as determined by the current CDC guidance.
Screening employees’ health in-person
The EEOC allows employers to screen employees before they enter the workplace in the following ways:
- Ask employees who physically enter the workplace if they have had COVID-19 symptoms or have been tested for COVID-19
- Measure employees’ body temperatures
- Send an employee home if they become ill with COVID-19 or associated symptoms
- Ask employees who reportedly feel ill or call in sick if they are experiencing symptoms of COVID-19
When thinking through your COVID-19 testing policy, the rule of thumb is: do not discriminate. If you test one employee, test all employees; ensure that the treatment of your teams is consistent. Read our comprehensive guide on crafting and implementing a COVID-19 testing policy here.
While the EEOC, ADA, and CDC issue federal guidance on what employers can do, it’s important to check local and state regulations to see what’s required, prohibited, and optional.
Discrimation against employees with certain protected characteristics
Employers should reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic. These could be based on protected characteristics such as age, family circumstances, pregnancy, and race or national origin.
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older and prohibits an employer from involuntarily excluding an employee from the workplace based on their being 65 or older (and therefore at higher risk), even if for benevolent reasons. Under the ADEA, employers may provide flexibility to workers age 65 and older, even if it results in younger workers (40-64) being treated less favorably based on age comparison.
The ADEA does not include a right to reasonable accommodation, but workers with underlying medical conditions may be entitled to accommodations under the ADA.
The Families First Coronavirus Response Act (FFCRA) prohibits employers from discharging, disciplining, or otherwise discriminating against an employee who takes paid leave under the Act. New York, Washington, Michigan, and many other states have enacted additional anti-retaliation measures to protect employees who request or take leave as a result of COVID-19.
Employers may provide any flexibility (telework, modified schedules, etc) as long as they are not treating employees differently based on sex or other EEOC-protected characteristics, such as providing more favorable treatment to a female employee than a male employee because gender-based assumptions about caretaking responsibilities.
While pregnancy is not a disability under the ADA, employers may not exclude an employee from the workplace involuntarily due to pregnancy. Such employees may be entitled to accommodations if they have pregnancy-related medical conditions
Although the ADA does not require employers to grant accommodations to a pregnant employee, some states including California and New York may require an employer to engage in the interactive process to find a reasonable accommodation.
Race and national origin
While your organization may already be mindful of discrimination related to race and national origin, the EEOC encourages employers to be mindful of instances of unlawful harassment, intimidation, or discrimination in the workplace following reports of mistreatment and harassment of Asian Americans and individuals of Asian descent in the workplace.
State and regional differences
While the above guidance is from the EEOC and ADA and applies on a federal level, states and local municipalities may have additional anti-discrimination and anti-retaliation laws. States such as California and Colorado have issued guidance that seems to largely track the EEOC’s Pandemic Guidance.
COVID-19 exposes your business to new and different risks. Make sure you consider how your policies and behavior impact your employees. To understand how to protect yourself from liability, read this guide on COVID-19 lawsuits.