A public health emergency like the one we are now experiencing creates stress for businesses and employees. It’s understandable that people are apprehensive – even fearful – about the spread of COVID-19 and the potential impact it may have on their personal lives and livelihood.
Unfortunately, anxious people sometimes draw irrational conclusions. In this case, such assumptions could include associating COVID-19 with a particular nationality or race. In late January, for example, the University of California at Berkeley’s health services center issued a guide to managing fears and anxiety around the novel coronavirus, asserting that “fears about interacting with those who might be from Asia” was a “normal reaction” people might experience. After being soundly criticized for having made the statement, the center quickly issued an apology.
Small business owners and managers must lead the way in making sure such illogical thinking never gains a foothold in their workplaces. This is, of course, the right thing to do. It’s also a legal matter. Pandemic or no, the law forbids discrimination against employees of a specific race, country of origin or skin color. Employers put their companies at risk for discrimination lawsuits if they use COVID-19 as an excuse to treat one employee or group of employees differently than others or allow workers to single out someone else based on race or country of origin.
Small businesses who employ individuals of Asian descent also need to be attuned to any concerns those employees might express about being harassed, isolated or otherwise treated differently because of COVID-19’s emergence.
An employer also may not bar an employee from entering the workplace because of that person’s race or national origin. The company is within its rights, however, to ask an employee not to come back to work if that worker recently has traveled to one of the world’s COVID-19 hot spots or is exhibiting COVID-19 symptoms, regardless of the employee’s race or national origin.
Avoiding Discrimination Under the ADA
Anti-discrimination laws, including the Americans with Disabilities Act, also prohibit employers from inquiring about an employee’s health status or requiring medical exams. This means an employer may not take an employee’s temperature at work or require other coronavirus screening unless it is considered necessary for the job or the employer believes the employee is a “direct threat” to the health or safety of the individual or others.
This standard under the ADA is high and, at least at this point in the pandemic, may be difficult for employers to meet. This could change, however. The Equal Employment Opportunity Commission, which oversees the ADA, says it relies on the Centers for Disease Control’s assessments about whether the pandemic poses a “direct threat.” If COVID-19 risk rises to such a level that the CDC determines it to be a direct threat, employers will legally be able to take an employee’s temperature at work.
While this may become legal at some point, it still isn’t the most reasonable workplace action to take. Some people who have contracted the coronavirus have experienced mild symptoms without fever, and other people might have fevers unrelated to the virus, so taking an employee’s temperature would not provide a definitive measure of the individual having contracted COVID-19.
It may be more realistic – if COVID-19 indeed gets a tight hold on the United States and the EEOC then recognizes inquiries into an employee’s health to be non-discriminatory under the ADA – for employers to ask about the employee’s health if he or she has traveled to an area restricted by the U.S. State Department, has a known exposure or is exhibiting symptoms commonly associated with the virus.
Employers also may require any employee who has been exposed or has symptoms to report the information to the company and to require the employee to remain away from work until the person is has been completely symptom-free for at least 24 hours.
During this national emergency, employers have an opportunity to reiterate their staunch commitment to a discrimination-, harassment-, bullying- and retaliation-free workplace, to promptly investigate if complaints of mistreatment surface and to ensure that cooler heads prevail.