Employers should check guidance often from federal, state and municipal governments and public health authorities for updates that impact their business and employees. The Equal Employment Opportunity Commission (EEOC) has established a page to consolidate workplace guidance related to the COVID-19 pandemic and EEO laws.
The EEOC enforces workplace anti-discrimination laws—and continues to do so during the COVID-19 crisis while ensuring their activities are consistent with public health guidelines. Since the pandemic began, the EEOC has published several documents to help guide employers with pandemic planning for the workplace including relevant EEO compliance requirements.
Take Care to Avoid Health-Related Discrimination
As we’ve learned more about the COVID-19 virus, science has revealed certain groups of people that face higher risks of suffering from the severe effects of the disease, if they contract it. These groups include older individuals and those with serious comorbidities such as obesity, diabetes, heart disease, and some kidney and lung problems. However, it is essential for employers to comply with health-related anti-discrimination laws, even as they work to keep employees safe and healthy. An employer’s legal obligation to provide a fair and equitable workplace remains while it adjusts operations to follow pandemic guidance.
If you haven’t reviewed it already, all employers should read the EEOC’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act document which provides technical assistance to ensure compliance with the ADA. Additionally, employers can review guidance related to other EEO laws including the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (GINA) here. Even if your business has continued the same level of operation for months, it’s important to understand your responsibilities and legal obligations to maintain a workplace free from health-related discrimination moving forward.
Find out what you need to know about compliance with EEO laws during the COVID-19 pandemic. Improve your understanding of these anti-discrimination laws so you can conduct CDC-recommended health screenings while maintaining confidentiality of medical records. Learn how to provide appropriate accommodations to workers in order to avoid violations.
ADA Protections and COVID-19
According to the EEOC, COVID-19 viral tests are permissible under the ADA in order to determine if an employee has an active case of the virus. However, antibody tests are not permissible since they are considered to be a medical examination. Therefore, antibody test results “should not be used to make decisions about returning persons to the workplace.”
To comply with ADA, an employee’s medical files must be stored separately from their personnel file. So, while an employer is allowed to collect temperature or symptom screening data, it must be kept confidential. It’s also important to thoroughly understand the right to a reasonable accommodation for individuals with disabilities.
During COVID-19, employers are permitted to engage in an interactive process with employees and request information when accommodations are needed. The interactive process is defined as a discussion between the employer and employee on whether the impairment is a disability and the reasons why an accommodation is needed. If there is an urgent need, an employer may choose to provide temporary or short-term accommodations until COVID-19 restrictions are lifted, at which time they can resume the interactive process.
Age Discrimination in Employment Act and COVID-19
As pandemic-related data has shown, workers age 65 and older are more greatly impacted by COVID-19. However, employers must be careful not to discriminate against these workers based on age. According to a recent article, “While you might be acting from a place of good intentions to protect your older workers from a potentially deadly exposure of COVID-19 by keeping them away from the workplace, that’s not your choice to make” As an employer, you can offer work-at-home or schedule change accommodations to an older worker—but it is that worker’s choice whether or not to accept the accommodation. Additionally, you can’t single out older workers and put them on mandatory telework.
Pregnancy Discrimination Act and COVID-19
As employees return to the workplace, many concerns have also been raised about discrimination against pregnant women due to the risk of severe illness from COVID-19. The CDC has recommended that pregnant women take added precautions, but the Act itself has no specific provisions for accommodating special needs. However, employers can’t deny accommodations such as work at home or flexible schedules that are granted to other employees. But if a pregnancy-related complication limits the employee’s ability to work where it amounts to a disability, then the employee is covered by ADA protections.
Genetic Information Nondiscrimination Act and COVID-19
Employers are prohibited from asking employees medical questions about family members—and that includes COVID-19. To maintain compliance with GINA, employers may not specifically ask about contact with COVID-19 from family members. Instead, the EEOC recommends asking whether that individual has had contact with anyone who has been diagnosed with COVID-19 or may have had symptoms.
Title VI of Civil Rights Act and COVID-19
Title VI prohibits discrimination on the basis of race, color, or national origin. To help ensure Title VI compliance during the COVID-19 pandemic, the US Department of Health and Human Services (HHS) recommends that organizations “adopt policies to prevent and address harassment or other unlawful discrimination on the basis of race, color, or national origin.” Additionally these policies should not exclude or deny persons based on race, color, or origin.
Ensure your business maintains compliance
There’s no question that maintaining a healthy workplace during a pandemic while meeting compliance requirements is challenging. That’s why many employers follow these best practices to create a healthy and equitable workplace:
Seek legal counsel and support. Especially with new health-related conditions, it’s important to consult with an attorney to understand how each EEO law applies to your business and what you need to do to maintain compliance.
Stay up-to-date with changes. Visit the EEOC’s website to stay current with new guidance related to COVID-19 and EEO laws. Additionally, employers should follow the most current workplace safety recommendations from public health authorities as the COVID-19 pandemic evolves.
Remember, employers are legally obligated to maintain a safe and healthy work environment for employees. Additionally, employers are subject to legal requirements protecting workers including ADA, ADEA, GINA, and more. Be sure to comply with all of these regulations in your approach to dealing with COVID-19 prevention and workplace safety.