As the COVID-19 pandemic rages on with no relief in sight, employers need to tread carefully in managing their employees to avoid legal scrutiny by federal law enforcement agencies, such as the Equal Opportunity Employment Commission (EEOC) and Occupational Safety and Health Administration (OSHA), so that an epidemic of litigation does not ensue following the mitigation of the novel coronavirus. The following addresses missteps employers must avoid to manage their workforce in these challenging and unprecedented times.
Do Not Allow Discrimination Against Employee Based on Race or National Origin
It is imperative to remember that all federal non-discrimination and other worker protection statutes, such as the Fair Labor Standards Act (FLSA), Title VII, the Americans with Disabilities Act(ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA) and the Occupational Safety and Health Act (OSH Act), are in full force and effect in spite of the global pandemic, where it may seem that all bets are off in fighting against this unseen enemy. However, that is not the case. In order to prevent a proliferation of stigma and discrimination in the workplace, any determination of the risk of COVID-19 to a workforce must be based on objective and scientific information, rather than on race or national origin. An employer should not allow any employee to be subjected to a hostile work environment based on an employee’s race and/or national origin due to mistaken notions about the origins of COVID-19. No new obligations have been created under these laws due to COVID-19.
Do Not Hide a COVID-19 Diagnosis, but Do Not Identify Individual by Name to the Extent Possible
One of the challenges any employer will face is balancing the privacy interest of an employee who is diagnosed with COVID-19 with the employer’s obligation under OSHA to provide a safe work environment to its employees. The privacy interest of any COVID-19 positive employee requires that an employer maintain confidentiality of the confirmed COVID-19 diagnosis of the employee. However, to protect the public health interest and each employee’s own health interest, the employer must inform its relevant workforce about any COVID-19 positive diagnosis without identifying the diagnosed individual by name, to the extent possible, so that the co-workers who were in the vicinity of the affected employee may take the necessary precautions, such as self-isolation or self-quarantine for the requisite 14-day period. Employers must not keep secret the fact that an employee has tested positive for COVID-19, as doing so would jeopardize efforts to notify, isolate and quarantine other employees exposed to that individual.
Do Not Prevent an Employee From Wearing a Mask or Gloves
As for providing a safe work environment as required by OSHA, the employer must not prevent an employee’s request to wear a mask and gloves, and allow them to do tasks in which they can maintain a distance of 6 feet from other workers, customers and visitors, if possible. Public health officials have advised that masks are not the most effective preventive measure for healthy individuals, but the unique nature of the food-preparation industry and this disease, which can be transmitted by asymptomatic individuals, may warrant exceptions in the restaurant industry in particular. Further, such efforts may provide a measure of comfort for those customers who are still taking pick-up and delivery orders of food.
Now that many restaurants are closed by local government orders for dine-in services, restaurant employees may find it easier to limit their contact with customers and visitors. Nonetheless, they may prefer to wear masks and food prep gloves, and they should be permitted to do so.
Do Not Enforce Rigid Sick Leave and Child Care Policies
Employers must also avoid rigid sick leave and child care policies, as well as punitive emergency sick leave policies. Should an employee identify as COVID-19 positive or have been exposed to a positive case of COVID-19, such that self-isolation is required, employers should not require a positive COVID-19 test result or a health care provider’s note for employees to validate their illness, given the tremendous strain on the health care profession in the U.S. Any concerns that an employee may try to take advantage of the crisis by falsely claiming to have been exposed to COVID-19 or being COVID-19 positive should be dealt with the same disciplinary action as for any other employee infraction, assuming the employer has proof of falsity.
Do Not Single Out Employees
Employers should be mindful to not ask employees whether they have a family member diagnosed with COVID-19, rather the inquiry should be whether they have come into contact with anyone with a positive COVID-19 diagnosis. Additionally, employers should not single out any one employee to inquire about a potential diagnosis of COVID-19 or require the employee’s temperature be taken, unless all other employees are subject to the same inquiries. The one exception is when there is objective evidence, such as the employee exhibiting a hacking dry cough, which may point toward a potential positive COVID-19 diagnosis.
Likewise, an employer should not violate the ADEA by excluding employees who are older than 65 and do not exhibit any symptoms of COVID-19 from the workforce simply because they are at a higher risk for contracting the illness, nor is an employer required to allow such employees older than 65 to telework simply because they might be at an increased risk of illness. These same principles would apply to a pregnant employee.
Do Not Violate the ADAAA
Under the Americans with Disabilities Act Amendments Act (ADAAA), it is not clear whether COVID-19 will be considered a disability as much is unknown about the disease and its after effects following recovery. However, it is clear that employers must engage in the interactive process required by the ADA to reasonably accommodate any employee if they have a recognized disability that places them at higher risk of contracting COVID-19, given the accommodation does not pose an undue hardship to the employer. One way to provide a reasonable accommodation may be to allow the employee to telework for one to two weeks, if possible. There is no requirement to continue the teleworking option following the end of the pandemic. One must remember, however, that under the ADAAA an employer is not required to provide a reasonable accommodation that eliminates an essential function of the job. In the restaurant and food services industry, teleworking may not be an option, but perhaps staggered work schedules to control the number of employees in a work space with safe distances and a stringent hand-washing regimen may constitute a reasonable accommodation for a disabled employee.
Likewise, employers should remember that asking an employee if he or she has an underlying condition that may make them move vulnerable to COVID-19 may create a potential violation of the ADAAA. Employers inquiries into an employee’s health must be limited to the ability to perform the job and/or voluntary employee health programs. Moreover, asking an employee to disclose an underlying condition may set up the employer for a claim based on a perceived or actual disability down the road.
While the landscape of the restaurant industry has been upended in an unprecedented manner, it is important to remember that all employment laws are in full force and effect. Therefore, any actions taken in light of this pandemic must still comply with the existing laws, while also addressing the challenges posed to the industry.