In order to take the CDC recommended precautions to minimize the spread of COVID-19 in the workplace, employers must gather information about employee health. What can they gather, and what should they do with it? For answers, we look to the Americans with Disabilities Act (ADA). The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:
Many states continue to see rising numbers of persons with positive COVID-19 tests, which means that workplaces in those states are dealing with employees who are infected with COVID-19. The CDC recommends that employees who test positive for COVID-19 (using a viral test, not an antibody test) should be excluded from work and remain in isolation if they do not need to be hospitalized. But for how long?
The CDC recommends the wearing of face masks as one way to slow the spread of the novel coronavirus, and 29 states and the District of Columbia have instituted or announced statewide orders requiring face coverings in public, with similar but varying requirements. Even states that do not have mask orders are strongly recommending that citizens wear masks in public to slow the spread of the coronavirus (Hello, Georgia).
How much control can an employer exercise over employee speech in the workplace?
As an initial matter, let’s talk about the First Amendment of the U.S. Constitution. The First Amendment protects speech against interference by the government; it does not protect speech against interference by a private employer. So employees of private employers cannot properly invoke their “first amendment rights” against any employer restrictions on their speech.
As several states see dramatic increases in the number of people who test positive for COVID-19, employers must be very proactive in taking steps to protect workers and customers from the spread of the virus. According to OSHA, employers should assess worker exposure to hazards and risks and implement infection prevention measures to reasonably address them consistent with OSHA Standards. Such measures could include promoting frequent and thorough handwashing or sanitizing with at least 60% alcohol hand sanitizer; encouraging workers to stay at home if sick; encouraging the use of cloth face coverings; and training them on proper respiratory etiquette, social distancing, and other steps they can take to protect themselves. Employers should clean and disinfect frequently touched surfaces (e.g., door handles, sink handles, workstations, restroom stalls) at least daily, or as much as possible.
A friend sent me an article about a woman who claimed that she was terminated from her job because her kids were heard in the background of her teleconference calls when she was working from home due to the pandemic. She has retained a lawyer and is suing her employer, claiming gender discrimination, retaliation, gender harassment, intentional infliction of emotional distress, and wrongful termination (this happened in California).
Is a genetic mutation disability? Specifically, is the genetic mutation known as a BRCA1 mutation (Angelina Jolie revealed that she has this mutation) a “disability” under the Americans with Disabilities Act (ADA) even though the employee has not yet developed breast cancer? In a case of first impression, the Sixth Circuit Court of Appeals said maybe. (Darby v. Childvine, Inc., No. 19-4214 (6th Cir. June 30, 2020)).
Who is the Equal Opportunity Harasser? It is the person who asks both men and women questions about their favorite sexual positions. The person who tells jokes that offend pretty much every ethnic group. The manager that screams at everyone and takes special delight in making employees cry. Basically, this is a person who is a complete jerk and a bully.
As COVID-19 restrictions ease, businesses are reopening and employees are returning to work. To assist employers and workers in safely returning to work and reopening businesses deemed by local authorities as “non-essential businesses” during the evolving COVID-19 pandemic, on June 17, 2020, OSHA issued some new Guidance on Returning to Work for employers. OSHA tells us that this Guidance does not have the force of law; the “recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.” Nevertheless, in the event that an employer is faced with an employee complaint to OSHA, a surprise OSHA inspection, or a lawsuit, that employer can only benefit by showing its documented compliance with OSHA’s own “recommendations.”
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