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Tricia Dunlap, Esq.

~2 minute read

Employee Discrimination: What To Do and What Not To Do

As a business owner, I imagine that you have worked long and hard to create a productive, inclusive, and empowering culture for your employees. It’s really important, as you come back to work after the COVID-19 crisis, that COVID-19 not disrupt or undermine the culture that you’ve created. It’s also important to consider potential legal liabilities around discrimination claims if you don’t have carefully thought out policies and procedures related to how your business manages employees in weeks to come. So let’s talk briefly about 3 EEOC guidance points on how employers can interact with employees related to COVID-19.

Three Things You Should Do

1. Asking About Symptoms

The EEOC tells us that it’s perfectly appropriate for business owners to ask their employees about their COVID-19 symptoms. In fact, you should have a written policy for your employees that informs them of their duty to report to you if they’re feeling sick, if someone they live with is sick, or if they’ve been in close contact with someone who’s been diagnosed with COVID-19.

2. Testing Temperatures

EEOC guidelines tell us that you can implement a temperature testing protocol for your employees. You should, however, think through some of the downstream impacts of this, such as when and how you’ll test your employees. Will they be on the clock or off the clock? Will they be in the building or will you do the test outside the building before they enter? There’s a lot to think through on that, but it is okay for you to require temperature testing of your employees.

3. Requiring Coronavirus Tests

It’s also okay to test your employees for COVID-19 or to require that they be tested under certain circumstances. You need to think that through and again, it should be part of your written policies. You should ask employees who believe they are in a higher risk category to inform you of that, and then you should work with that employee to create a reasonable accommodation that will hopefully accommodate their needs as a higher risk individual and also still perform the essential functions of their job.

Two Things You Should Not Do Under Any Circumstances

4. Single Out Employees

Do not single out an employee unless you have a reasonable belief based on objective evidence that an employee may have COVID-19.

5. Identifying Employees

Under no circumstances, should you ever identify an employee by name in connection with their health status to other employees. Whether or not one employee has COVID or doesn’t have COVID, it’s nobody’s business in the workplace. You should never identify that employee by name, regardless of whether the health status is positive or negative. That could be a violation of HIPPA.

So, with all of this in mind, this is a beginning point for you to think about potential discrimination issues around COVID-19 in your workplace. We have a whole page devoted to COVID-19 resources, from videos to webinars to blog posts and articles.