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Coronavirus Is Affecting Employment Law in Ways You Probably Never Anticipated

The Equal Employment Opportunity Commission (EEOC) released a webinar answering people’s most common employment law question related to COVID-19. The webinar was conducted on Friday by three of the agency’s lawyers—Carol Miaskoff, associate legal counsel; Sharon Rennert, senior attorney adviser; and Jeanne Goldberg, acting assistant legal counsel. We’ve reviewed the webinar and now share with you some of the realities (as of March 27) of the legal side of this global pandemic.

1. When it comes to coronavirus and your employer, you have no real right to privacy.

According to the experts, employers can ask any employees that are physically in a workplace whether they have COVID-19, symptoms of COVID-19, or if they’ve been tested for COVID-19. Any employee who refuses to answer can be barred from physical presence in that workplace. This is somewhat of a departure from standard practice of most employers. Under normal conditions, employers can typically only ask questions about a medical condition or disability that appears to be impacting an employee’s work or performance. That’s a murky standard at best, and many employees use a policy of not asking for any medical information.

2. If you’ve tested positive for COVID-19, your employer doesn’t need to keep that information confidential within the workplace.

Employers have an obligation to act in a manner consistent with Center for Disease Control  (CDC) guidance. That likely means communicating a positive diagnosis with someone on the employer’s end. Who, exactly is on the “need to know” list isn’t quite clear, and will be different from company to company. What is clear, though, is that an employer that knows it has an infected employee has some obligation to protect other employees, and communication will necessarily be a part of fulfilling that obligation.

3. No one is really sure yet whether COVID-19 counts as a disability under the Americans with Disabilities Act.

EEOC senior attorney adviser Sharon Rennert specifically said that “it is unclear at this time whether COVID-19 is or could be a disability under the [Americans with Disabilities Act].” Illnesses or conditions that are considered “disabilities” under the Americans with Disabilities Act (ADA) trigger a set of rights in the workplace; because COVID-19 is not an official disability at this time, no heightened legal protections are in place to protect those suffering from the virus.

4. Discrimination is perfectly legal.

We’re not talking about gender-based or race-based discrimination – just simple discrimination. That means that if an employer has a “reasonable belief” based on “objective evidence” that one employee may have COVID-19, the employer can ask just that employee to provide medical information or to have their temperature taken.  What would legally constitute the right kind of “objective evidence” has not yet been tested; given, however, the COVID-19 symptoms that have been widely publicized, any employer who can point to an employee’s cough, fever, or respiratory symptoms would likely be on solid legal footing.

5. Asking about your family is fair game, too.

The panel skirted a direct answer on the question of whether your employer can legally ask whether your family members have been exposed to COVID-19. The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from asking employees medical questions about family members, but it is unclear at this point whether GINA forbids asking about a family member’s coronavirus exposure. The panel suggested that it would be “better” for an employer ask the “more sound” question of whether an employee had been exposed to anyone who may have been exposed to the virus. Still, though, it wasn’t a hard “no” on asking about your family’s health.

6. Your employer can call public health authorities about your health.

Even under the ADA, it is permissible for an employer to communicate with public health authorities about a disease that poses a direct threat to others. Given the contagiousness of COVID-19, an employer who knows that an employee is symptomatic or tests positive for the virus is permitted to disclose that information to authorities.

7. The rules about storing your medical records are unclear at best.

During normal times, employers are legally obligated to store medical information separately from personnel files. During this time, when everyone is out-of-the-office, though, that might not be practical. According to the panel, “If its not feasible to use the normal procedures,” a supervisor is only obligated to maintain separate confidentiality of these records to the “greatest extent possible.”

8. Employers cannot force those over 65 years old to stay home.

The Age Discrimination in Employment Act prohibits discrimination against employees over 40 years old. Absent any symptoms or knowledge of a positive COVID-19 diagnosis, there is no legal basis for an employer to treat those over 65 different from other employees.

9. Employers don’t have to let people over 65 years old telecommute.

Of course, if an employer is allowing other people to work from home, it can’t single out senior citizens to deny telecommuting. But if others are coming in to a physical workplace, there is no legal requirement for an employer to make a special accommodation for older adults.

10. Pregnant women are not necessarily entitled to any special treatment.

Discrimination based on pregnancy is prohibited as gender discrimination. So long as pregnant women aren’t singled out for layoffs or other adverse action, an employer’s obligation is simply to treat pregnant women the same as non-pregnant people. Of course, if a pregnant woman has other health conditions that entitle her to a reasonable accommodation, an employer is obligated to provide that accommodation during this pandemic, just as always. However, being pregnant is not in itself a basis for requesting a workplace accommodation.

11. You are not entitled to any workplace accommodations just because you live with someone who has a health condition that could be worsened by COVID-19.

The CDC has identified some medical conditions (like chronic lung disease or heart conditions) that put people at a higher risk if they contract COVID-19. Employees that suffer from those conditions would have a legal basis to request a reasonable accommodation, such as working from home. However, the same protection does not extend to family members. So, an employee hoping to telecommute in an effort to limit risks to a medically-fragile family member would not have a basis to demand such an accommodation.

12. When the COVID-19 crisis has passed, your employer can require that you come back into the office.

The panel was clear that telecommuting during this time does not indicate that coming in to a physical workplace is no longer an “essential function” of a job. Therefore, employees will not be able to successfully demand that their temporary work-from-home arrangement entitles them to work from home indefinitely.

[Image via Angela Weiss/AFP via Getty Images)

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos