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As states lift their stay-at-home orders and businesses across the country begin to reopen, employers must balance their obligations under federal workplace anti-discrimination laws with protecting their employees from COVID-19, the disease caused by the novel coronavirus. Workplace anti-discrimination laws such as the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII) and the Age Discrimination in Employment Act remain in place. But they do not operate to interfere with or prevent employers from following guidelines from the Centers for Disease Control and Prevention (CDC) or their state and local public health authorities. Here are some useful tips for employers preparing for their employees to return to work during the ongoing COVID-19 pandemic.

Generally speaking, employers should be guided by the CDC and their state and local public health authorities in deciding what precautions to take to keep their employees and the public safe. According to the U.S. Equal Employment Opportunity Commission (EEOC), employers can ask employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath or sore throat—and even take employees’ temperatures or test them for COVID-19—because the CDC has acknowledged the risk of community spread of the virus. This satisfies the ADA’s requirement that medical examinations or inquiries for existing employees be “job-related and consistent with business necessity.”

If employers conduct temperature checks or COVID-19 tests, however, they must store such information separately from employees’ personnel files, as required by the ADA. Employers can require employees who self-report symptoms of COVID-19, run a temperature or test positive for COVID-19 to stay home from work because their presence in the workplace would pose a “direct threat” to the health and safety of their coworkers, as defined by the ADA. Employers also can require employees to wear protective gear, such as masks and gloves, and observe infection control practices, such as regular hand washing and social distancing protocols, once they return to work. These safety precautions do not implicate the ADA or other workplace anti-discrimination laws.

Importantly, however, COVID-19-related workplace rules must apply equally to all employees. Employers cannot, for example, require an employee to stay home, revoke a job offer or postpone a new employee’s start date based on COVID-19 risk factors such as pregnancy, existing medical conditions or age. As the EEOC explains, “The fact that the CDC has identified [certain individuals] as being at greater risk does not justify unilaterally postponing [an individual’s] start date or withdrawing a job offer.” Though employers may have good intentions—protecting their most vulnerable employees—in selectively applying COVID-19-related rules to at-risk groups, doing so could violate Title VII, the ADA or the ADEA.

Employers also should bear in mind that employees with existing medical conditions can request additional workplace protections to keep themselves safe. Under the ADA, employers may be required to provide “reasonable accommodations” to employees with medical conditions that place them at a higher risk of COVID-19, so long as the accommodation does not impose an “undue hardship” on the employer. Once an employee requests an accommodation—whether or not the employee uses the word “accommodation”—an employer may not simply deny it as unduly burdensome. The request for an accommodation triggers an obligation on the part of the employer to engage in an “interactive process” with the employee to determine whether an accommodation exists that would address the employee’s needs without posing an undue burden.

The EEOC has identified several low-cost accommodations that employers can be implement to reduce vulnerable employees’ contact with others, such as designating one-way aisles on showroom floors or using plexiglass, tables or other barriers to ensure safe distances between protected employees and their coworkers or customers. Employers can consider the unique circumstances of the pandemic, such as the feasibility of delivering certain supplies and the sudden loss of some or all of their income streams, to determine whether an accommodation imposes an “undue hardship.” As always, however, an employer cannot reject an employee’s request for reasonable accommodation solely because it costs money; it must weigh the cost of an accommodation against its current budget and other business needs.

The origination of COVID-19 in Wuhan, China, may have engendered new bias against Chinese-Americans, for example, because of their race and/or national origin. Though Title VII already protects employees against workplace harassment on the basis of these and other protected characteristics, the EEOC recommends that employers “explicitly communicat[e] to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.” This may reduce workplace harassment that is connected to the pandemic.

Finally, employers should note that all of the rules above apply with equal force to essential and non-essential employees. The fact that many essential employees, including construction workers, have reported to work throughout the COVID-19 pandemic does not limit their protections under federal anti-discrimination laws.

Employers will have difficult decisions to make in the weeks and months to come. But with advance planning, they can protect employees’ health and safety while respecting their civil rights in the workplace.


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