BUILDING SUCCESSFUL BUSINESSES

Managing your workforce during the pandemic without violating the law

| Feb 18, 2021 | COVID

The COVID-19 pandemic has added an extra layer of complexity to employer-employee relationships. It’s increasingly important for employers to stay abreast of the evolving legal landscape, including the relationship between common concerns related to the virus and your employees’ protections under the Equal Employment Opportunity (EEO) and the Americans with Disabilities Act (ADA).

We’re dealing with unusual times, so that’s created some unusual situations. The appropriate actions may not be as clear as you expect.

What are some of the most important things for employers to keep in mind?

During the pandemic, it’s not considered a violation of the ADA to ask an employee if they are experiencing symptoms of the virus — but their responses do need to be treated as confidential medical information. Plus:

  • You may screen employees (including through the use of temperature checks) for COVID-19 symptoms without violating the ADA or the EEOC’s rules.
  • You may ask about travel plans or recent travel to see if an employee poses a high risk of infection.
  • You may require anybody with a COVID-19 diagnosis or symptoms of infection to stay home from work.
  • You may ask an employee who has shown symptoms of the virus to provide a doctor’s note that they are now clear to work.
  • You may require employees to submit to COVID-19 testing before entering the workplace if they could pose a danger to others.
  • You can bar an employee who refuses testing or screening from the workplace.

Employers do need to keep in mind certain limitations. They cannot, for example, single out an employee for testing or screening. Nor may they ask employees if their family members are symptomatic or positive for the virus.

The issues involving the pandemic are complex. For example, you cannot single out a pregnant employee and send them home because you’re worried about the possibility they may be exposed to the virus without violating Title VII of the Civil Rights Act, but pregnancy can be a reason under the ADA for an employee to request remote work due to infection concerns.

The coronavirus crisis is ever-evolving, and government officials here in Fresno and elsewhere in California are busy trying to keep up. Working with an attorney can help you understand whether your proposed procedures violate the law before it’s too late.