Interaction of federal employment laws and COVID-19 in the workplace

Federal civil rights laws protect employees from discrimination and harassment at work based on protected characteristics, including disability. This particular trait and federal laws that protect people with disabilities are relevant in the frontier of COVID-19 as it impacts the application of anti-discrimination rules and employee protections in the workplace.

The U.S. Equal Employment Opportunity Commission (EEOC) is the primary federal agency charged with the enforcement of federal anti-discrimination in employment laws. On the EEOC’s website, the agency provides a robust technical assistance page called, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The page contains many important links to other helpful resources.

The agency updates the page on an ongoing basis. It also warns employers to stay abreast of new developments in the scientific understanding of the coronavirus as it impacts the workplace. Information shared in this article is based on the page’s content as of this writing on July 4, 2020.

Medical information, examinations and workplace safety

The Americans with Disabilities Act (ADA) and the Rehabilitation Act regulate reasonable accommodation for disability at work, disability discrimination and employer imposition of medical exams and requests for health information. During the coronavirus outbreak, an employer may:

• Require an employee to get a reliable, accurate COVID-19 test in order to work because the virus’s threat to others in the workplace is “job related and consistent with business necessity.” An antibody test, however, is not in the same category and may not be a mandated medical exam.
• Require employees to practice infection control recommendations on the job to control the virus.
• Require employees to stay home if they have COVID-19 symptoms or go home if they develop them at work.
• Take employee temperatures and ask questions about symptoms as a condition of entering the workplace.

However, the employer must keep confidential any employee’s personal medical information obtained through any of these processes and store it separately from regular personnel records to limit access, with a couple of exceptions, including required disclosure of a COVID-19 diagnosis to a public health agency if required by law.

The federal laws enforced by the EEOC apply to most employers of at least 15 people. California state laws and some local laws may impose more restrictions and requirements on these and many smaller employers. The answers to a California employee’s questions on these topics as they pertain to their specific job may vary over time and depend on the size, type and location of the employer.