COVID-19 In The Workplace: An Employer’s Guide to Responding To The Pandemic Without Violating Federal Antidiscrimination Laws
July 2020 by Sarah Keith-Bolden |
The COVID-19 pandemic has raised many questions for employers, who are suddenly faced with the prospect of taking unprecedented steps to protect employees from being exposed to the virus. Some of these steps—including conducting health checks on employees, excluding sick employees from the workplace, and taking steps to protect employees who are at higher risk of severe illness—implicate the Americans with Disabilities Act (“ADA”) and other federal anti-discrimination laws enforced by the U.S. Equal Employment Opportunity Commission (“EEOC”). These laws apply to most employers with at least 15 (or, in the case of age discrimination, 20) employees[1] and limit a covered employer’s right to require employees to take medical tests,[2] ask employees medical questions,[3] and exclude employees from the workplace based on disability, age, or pregnancy.[4]
The EEOC takes the position that the laws enforced by the EEOC “do not
interfere with or prevent employers from following the guidelines and
suggestions made by the [Centers for Disease Control and Prevention (“CDC”)] or
state/local public health authorities about steps employers should take regarding
COVID-19.”[5] It has elaborated on this position
by providing specific guidance to employers about how antidiscrimination laws
apply during the pandemic.[6] This article outlines how the EEOC’s guidance
applies to employers who are (1) implementing a program to identify employees
who may have COVID-19 and prevent them from infecting others in the workplace
and (2) responding to employees who may be particularly susceptible to serious
illness if infected by COVID-19. It also
points employers to relevant public health guidelines that impact how the steps
endorsed by the EEOC can be implemented.
[1] 42 U.S.C. §§ 12111(2), 12111(5), 2000e(b), 2000ff(2)(B)(i); 29 U.S.C. § 630(b).
[2] 42 U.S.C. § 12112(d).
[3] Id.
[4] Id.; 42 U.S.C. § 2000e(k), e-2(a); 29 U.S.C. § 623(a).
[5] U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (updated June 17, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws [hereinafter What You Should Know About COVID-19].
[6] What You Should Know About COVID-19, supra note 5; U.S. Equal Employment Opportunity Commission, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (updated March 21, 2020), https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act [hereinafter Pandemic Preparedness]; U.S. Equal Employment Opportunity Commission, Transcript of March 27, 2020 Outreach Webinar, https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar [hereinafter March 27 Webinar].
The above is an excerpt from an article authored by Sarah Keith-Bolden. You can download the entire article below.
Sarah Keith-Bolden is a member at Quattlebaum, Grooms & Tull PLLC where her practice focuses on commercial litigation and appeals. Ms. Keith-Bolden can be reached at sbolden@QGTLAW.com or 501-379-1789.