Complying with EEOC Anti-Discrimination Laws During the Pandemic

 

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Employers can take additional health and safety precautions during a pandemic—such as checking workers' temperatures—and they still must follow workplace anti-discrimination laws. HR professionals should periodically check for Equal Employment Opportunity Commission (EEOC) updates on coronavirus-related rules and resources as the crisis evolves.

The EEOC "wants you to know that we are continuing to enforce the nation's employment nondiscrimination laws while ensuring that all of our activities are consistent with public health guidelines," according to the agency's website.

The EEOC enforces federal laws that prohibit employment discrimination, such as the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964. 

"We have seen many examples of people rising to the occasion, helping others in need, sometimes at great risk or sacrifice to themselves," said EEOC Chair Janet Dhillon. "Sadly, there have also been reports of mistreatment and harassment of Asian Americans and other people of Asian descent." 

So employers must take extra care to prevent and address workplace discrimination based on national origin and race. "The EEOC urges employers and employees to be mindful of instances of harassment, intimidation or discrimination in the workplace and to take action to prevent or correct this behavior," Dhillon said.

Employers can check the agency's website for coronavirus-related updates and answers to frequently asked questions about what they can and can't do under EEOC laws during the pandemic.

We've rounded up articles and resources from SHRM Online and other trusted media outlets on recent EEOC guidance.

Disclosing Employee Data to Public Health Agencies

What information can an employer disclose to a public health agency when a worker is diagnosed with COVID-19 (the respiratory illness caused by the coronavirus)? The EEOC said businesses can provide an employee's name to a public health agency without running afoul of the ADA. Temporary staffing agencies and contractors that place workers with a client may notify the client when an employee has COVID-19. Employers should note, however, that states may have more restrictive anti-discrimination and privacy laws. As a best practice, employers should limit the number of people who know the name of the employee and should not disclose the employee's identity when notifying co-workers and other business partners who may have come into contact with the employee.

(The National Law Review)

Employers May Take Employees' Temperatures

During a pandemic, ADA-covered employers may ask employees who call in sick if they are experiencing symptoms of the coronavirus, according to EEOC guidance. For COVID-19, these include fever, chills, cough, shortness of breath and sore throat. The EEOC also gave employers the green light to take employees' temperatures to try and ward off the spread of the coronavirus, but employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

(SHRM Online)

Additional Questions Permitted

In updated guidance, the EEOC said employers can ask workers if they have experienced COVID-19-related symptoms beyond a fever or cough, such as a loss of smell or nausea, and other symptoms that public health officials have determined to be connected to the respiratory disease. Employers may also keep COVID-19-related medical data in existing medical files. The EEOC noted, however, that employers can't rescind job offers to certain applicants, such as pregnant women and older workers, solely because they are at a higher risk of infection.

(Bloomberg Law)

Take Precautions to Fight Discrimination

Educating workers on the nature of the virus is important to ward off potential stigmatization, misunderstanding or overreaction, according to Eckert Seamans Cherin & Mellott, a law firm based in Annapolis, Md. The U.S. Centers for Disease Control and Prevention (CDC) has urged the public to stay calm and stop misinformation from spreading. "Being Chinese or Asian American does not increase the chance of getting or spreading COVID-19," the agency said on its website. "Viruses cannot target people from specific populations, ethnicities or racial backgrounds."

(SHRM Online)

Workers May Have Extra Time to File Bias Lawsuits

Due to the coronavirus crisis, the EEOC has temporarily stopped closing its workplace discrimination investigations, which gives claimants more time to file lawsuits against their employers. After closing an investigation, the agency generally issues a "right-to-sue" letter to the claimant, and the claimant can opt to file a lawsuit within 90 days of receiving the letter. "The EEOC appreciates that some people whose charges are currently before the EEOC may be worried that they might have to choose between jeopardizing their safety and protecting their rights," an agency spokesperson told Bloomberg Law.

"The EEOC has closed its physical offices to the public and implemented agency-wide expanded telework," the agency said in a statement. "But our work continues remotely, across the private and federal sectors, and in our efforts educate the public about their workplace rights and responsibilities."

(Bloomberg Law) and (EEOC)

 

Visit SHRM's resource page on coronavirus and COVID-19.

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