Return to Work: Avoiding Discrimination Claims While Protecting Employees from COVID-19

By Marylou Fabbo - Skoler, Abbott & Presser, P.C.

April 27, 2020

It’s unclear when the stay-at-home order will be lifted, and employers will get the go-ahead to return employees to the workplace. In Massachusetts, Governor Baker has ordered schools closed through the end of the year, and non-emergency daycares closed until June 30.  The non-essential business stay-at-home order has already been extended once to May 4, and whether that date will be pushed back again as to all or some non-essential business remains to be seen.  Whether it happens in the next few weeks or sometime thereafter, employees will be returning to their physical workplaces.  When that happens, employers must be cautious not to inadvertently run afoul of the Americans with Disabilities Act (and any parallel state discrimination laws) when they take steps to reduce the risk of employees becoming infected with COVID-19.  Fortunately, the Equal Employment Opportunity Commission (“EEOC”) has provided employers with some guidance that tips the scales in favor of protecting employees’ health.

Interplay Between the Americans with Disabilities Act (“ADA”) and COVID-19

The ADA protects applicants and employees from disability discrimination.  It limits employers’ abilities to make disability-related inquiries and conduct medical examinations for applicants and employees, including those who do not have disabilities.  It also prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodations).  The fact that COVID-19 poses a direct threat to employees allows employers to take protective steps that likely would not be permissible under “normal” circumstances.  

Calling-Out Sick and Sending Employees Home

Employers may ask an employee whether the employee is experiencing COVID-19 symptoms, such as fevers, chills, coughs, sore throat, and shortness of breath.  Any information gathered must be maintained in the employee’s confidential medical file as the ADA requires.  Employees with symptoms may also be sent home without running afoul of the ADA.  And, it’s ok to require a fitness-for-duty before the employee returns.  Can you send someone home who has been exposed to COVID-19?  Although not addressed directly by the EEOC, we believe doing so would be consistent with the principles it set forth in the guidance documents.

Taking Temperatures and Testing for COVID-19

The EEOC has given the ok to employers to test employees (assuming reliable, validated tests are available) and to take their temperatures.  Keep in mind that the ADA requires that any medical exam, which includes temperature taking and testing, must be job-related and consistent with business necessity.  To avoid discrimination claims, we recommend that standards be drafted and distributed to employees outlining who will be tested.  For example, will everyone be tested?  Will only those who work in a close radius from others be tested?  Keep in mind that neither testing nor taking an employee’s temperature produces absolute results.  Again, any information gathered via testing or temperature taking must be maintained confidentially.  Do not include it as part of an employee’s personnel file.  By the way, if your employee tests positive or has COVID-19, you can disclose the employee’s name to the state’s public health agency.

What About Applicants and New Hires?

If you are in the fortunate position of being able to hire new workers, there are a few things you should know:

- Employers may screen candidates for COVID-19 only after making a conditional job offer as long as it does so for all those in the same job category;
- Employers may delay the start date if an employee has COVID-19 or symptoms;
- Employers may withdraw a job offer if they need someone to start right away, and the employee has COVID-19 or symptoms of COVID-19; and
- Employers may not delay the start date of pregnant women or those over 65 simply because they are at greater risk of contracting COVID-19.         

The Bottom Line

Disability discrimination laws continue to apply, but the EEOC has issued guidance to let employers know that those laws do not interfere with employers’ ability to maintain a safe workplace.  Employers should follow CDC and state/local public health authorities’ recommendations while keeping in mind that state and federal guidance is likely to change.  Check back to our blog to remain up-to-date with those and other COVID-19 developments so that you can make sure you are following the most recent recommendations on workplace safety and discrimination issues.

This blog addresses COVID-19 and disability discrimination issues.  However, we are likely to see a COVID-19-related increase in claims of discrimination or harassment on other bases such as national origin and race (such as Asian Americans and those of Asian descent), as well as issues arising under other laws, such as OSHA, Families First Coronavirus Response Act, the Family Medical Leave Act, state and federal wage and hour laws, and unemployment statutes.  If you have questions or would like to discuss any COVID-19 related issues with us, please feel free to reach out to any of our attorneys.