The experienced attorneys at Maynard, O’Connor, Smith and Catalinotto are available to assist you if you have been subject to employment discrimination as a result of the COVID-19 pandemic. Despite the shutdown of many businesses, the EEOC continues to enforce anti-discrimination laws including the American with Disabilities Act, Title VII, the Rehabilitation Act, and Age Discrimination in Employment Act. However, employers are permitted to implement workplace changes in order to adhere to public health rules and regulations.
During a pandemic, an employer can inquire from an employee if they have had symptoms of the pandemic virus. In particular for COVID-19, employers are permitted to take an employee’s body temperature, despite it constituting a medical examination. Employers of essential employees who are still reporting to a work location are permitted to ask employees with COVID-19 symptoms or who have been tested for COVID-19 and are awaiting results to stay home, and to require medical documentation of fitness to return prior to returning to the work location. If employees have difficulty obtaining such medical documentation due to the overburdened health care system, employers may need to be flexible in allowing alternative documentation (such as email, pre-printed form, etc.). An employer is also permitted to withdraw an offer of employment if the potential employee has COVID-19 symptoms and cannot report to work. As always, all medical information about an employee must be kept confidential, other than as necessary to report as required by public health. It should be noted that if a particular employee tests positive for COVID-19, the employer is not permitted to specifically identify that individual to other employees, even in the course of notifying them of potential exposure.
Despite the heightened risk of COVID-19 to individuals over the age of 65, employers are not permitted to take adverse action, such as layoff or furlough decisions, or otherwise target employees simply because they are over the age of 65 who do not have COVID-19 symptoms or positive test results. Similarly, despite heightened risk to pregnant women, employers are not permitted to make layoff or furlough decisions solely based on a woman’s pregnancy, in the absence of COVID-19 symptoms. Adverse action, or allowing a hostile work environment on the basis of national origin also remains prohibited, regardless of the pandemic.
The issues surrounding potential discrimination in the workplace in the context of COVID-19 are complex and evolving. As public health rules and regulations change frequently as the pandemic unfolds, you should seek the advice of experienced employment attorneys in order to navigate any potential discrimination claims.