The coronavirus shutdown has caused drastic changes to the country’s workplaces, but the laws prohibiting employment discrimination are still in effect. Even though the EEOC’s physical offices are closed, its employees continue to work remotely, and the Commission is still enforcing the law.
Private-sector and government workers can still file claims for discrimination by using the EEOC’s Public Portal. Employers can use the same portal to communicate with the Commission.
The ADA and the Rehabilitation Act
The Americans With Disabilities Act (ADA) and the Rehabilitation Act are both still in effect during the shutdown. The EEOC has issued guidance on how the application of these laws interact with the health guidance from public health officials.
Current CDC guidance is that employees who have COVID-19 or who show symptoms of the disease should not be in the workplace. Employers should follow that CDC guidance; it does not violate the ADA for employers to send workers home if they have COVID symptoms.
Employers can also require that employees have their temperature taken, as long as the employers keep the results confidential. In addition, employers can require employees to follow health guidelines, such as handwashing and wearing personal protective equipment (PPE), but employers should provide reasonable accommodations to employees who need them to follow those guidelines.
The anti-discrimination laws do place some restrictions on the COVID-19 related questions that employers may ask. Employers can ask if employees would be unable to come to work for reasons having to do with the shutdown. For example, they could ask whether an employee would be unable to get to the workplace if the local transit system were shut down. However, employers cannot ask employees or applicants if they have any health conditions that might make them more susceptible to COVID-19 complications.
It doesn’t violate the ADA to request that post-offer hires get medical examinations, and employers may screen applicants for symptoms of COVID-19, as long as they are not screening for underlying health conditions.
In addition, employers must continue to provide reasonable accommodations for disabilities that are not related to COVID-19.
Increase in Racism Against Asian-Americans
Since the start of the pandemic, there have been reports from around the country of physical attacks and harassment against people of Asian descent. The EEOC put out a statement reminding employers that discrimination on the basis of national origin or race is unlawful under Title VII and under some state and local laws as well.
Employers need to be especially vigilant now about preventing, stopping and correcting any workplace incidents of discrimination, harassment, or intimidation against Asian-Americans or against anyone else who is being mistreated due to race or national origin. Employers should have clear anti-discrimination policies in place and should make sure their employees understand the policies and know what to do if they observe anyone being harassed.
Ablin Law Is Here to Help
If you have any questions about how the COVID-19 shutdown is affecting pending discrimination or harassment investigations or how the health crisis is affecting enforcement of anti-discrimination laws, please contact us at Ablin Law.