COVID-19 raises novel questions for NY employers and employees

We are living in unprecedented times. In a world reeling from a global pandemic, employers and employees alike must navigate issues of public health and determine how to act safely – and legally – when returning to the workplace.

Disability discrimination issues and medical information

The Americans with Disabilities Act (ADA), which applies to most employers of at least 15 people, regulates employment discrimination based on disability and reasonable accommodations for disabilities. The ADA places limitations on when and how employers may require employees to undergo medical examinations or provide certain health information to the employer.

As a result of the coronavirus outbreak, employers subject to the ADA have been afforded additional rights to certain coronavirus-related medical information to protect their workforces. For example, employers may ask employees if they have specific COVID-19 symptoms and take their temperatures before permitting the employees to enter the workplace. Normally, these actions would constitute an unlawful medical exam which the employer is prohibited from performing, but due to COVID-19’s classification as a community health danger, employers may now require employees to undergo these minor procedures. Similarly, an employer may ask an employee who calls in sick if the employee has COVID-19 symptoms, even though such an inquiry is typically not permissible, and may require employees with COVID-19 symptoms to leave work without worrying about discrimination laws.

Furthermore, because the ADA allows a covered employer to administer a medical exam to an employee if the exam is “job related” and a “business necessity,” the employer can also require an employee to undergo a reliable coronavirus test in order to keep other workers safe. In the same vein, employees may be required to follow infection control practices at work to avoid or limit the spread of the disease.

Even with these expanded rights, an employer that learns of any personal health information regarding an employee must continue to keep such information strictly confidential.

Guidance for employers and employees

The U.S. Equal Employment Opportunity Commission (EEOC) is the main federal agency responsible for enforcing federal anti-discrimination in employment laws. The EEOC maintains and regularly updates an informational technical assistance page on its website entitled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The page – which is very comprehensive in and of itself – contains links to additional resources with even more details and directions.

The EEOC reminds employers that guidance from medical experts and public health officials is constantly changing and will continue to evolve with our understanding of the coronavirus. Employers would be wise to stay informed on the most recent advice regarding the virus.

In addition to federal law, New York employers are subject to complex state and local employment laws that are often more restrictive than federal regulations and apply to even more employers with fewer employees. Therefore, employers in New York must be even more vigilant about ensuring compliance with applicable laws and regulations while also maintaining a safe work environment.