It is with both a sigh of relief and a bit of trepidation on the part of employers that employees are finally starting to return to work, including physically coming back to their places of employment. While much has been written about how COVID-19 has and will continue to change the employment landscape, I thought it was good time for a reminder that, even in the midst of trying to figure out a new way of doing business, all the old rules still apply. With that in mind, the following are four areas where employers need to remain especially vigilant:
1. Medical privacy. As many employers will no doubt begin collecting additional medical data from their employees – often as they walk in the door – it’s important to remember that the Americans with Disabilities Act requires employers to keep that information strictly confidential and limits disclosure of such information to those with a “need to know.” That means if Joe is running a fever, his boss should not inform the entire office. And even if he winds up testing positive for COVID-19, no one should tell his co-workers without his permission (though the employer probably can inform any co-workers who may have been exposed without naming names). Also, all employee medical information, even temperature readings, must be kept secured and separate from personnel files.
2. Discrimination. The CDC has identified certain populations as being at higher risk of severe illness if they contract COVID-19, including older adults (particularly those over 65) and individuals with certain medical conditions, such as asthma, heart disease, and diabetes. However, this does not mean that an employer can unilaterally deem it unsafe for these individuals to return to the workplace or engage in certain work-related activities, such as travel. Paternalism, even if it is well intentioned, never ends well, and could result in a claim under the Age Discrimination in Employment Act or the Americans with Disabilities Act.
3. Harassment. There have been reports of an increase in harassing behavior directed toward individuals of Chinese descent and Asians generally. Employers should be on the lookout for this behavior, and if it occurs, shut it down immediately. This includes employees’ posts on social media. Employers should also watch out for harassment of those employees who choose to wear masks (or those who don’t) – it’s possible these individuals have a disability or some other protected reason for doing so. Not only is it bad for morale to belittle someone for their personal choices and/or beliefs; it’s potentially illegal.
4. Retaliation. Not surprisingly, retaliation claims, especially those related to workplace health and safety, are on the rise. Employers should take all such complaints seriously and ensure that employees who report compliance concerns, including those under OSHA, Title VII, and other employment statutes, are not subjected to any form of retaliation for doing so. Remember that, in most cases, it doesn’t matter whether the underlying complaint is valid – only that the employee has a good faith belief that it is.
Now is a great time to remind managers and supervisors about these employment law basics, including their duty to investigate employee complaints and take action where warranted. After all, while COVID-19 may be new, the laws themselves have not changed, nor have employers’ compliance obligations.