Many employees will have questions about their rights when they return to work after the coronavirus pandemic, especially related to safety and privacy. Fortunately, a number of federal agencies, including the Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control and Prevention (CDC), have provided guidance on what employers can and can’t do to ensure the health and safety of their workforce.
Below are answers to some of the questions you might have about working during and after the COVID-19 pandemic.
Yes, according to the Equal Employment Opportunity Commission (EEOC), although your employer must keep your medical information confidential. Employers should also bear in mind that many carriers of COVID-19 don’t suffer from fever (or any other symptoms). For this reason, they should maintain strict health and safety procedures in the workplace to minimize the spread of the disease.
No. The Americans with Disabilities Act (ADA) prohibits employers from disclosing your personal medical information to others in the workplace. However, employers are permitted to tell employees that someone in the workplace either has symptoms of the virus or has tested positive.
Yes. However, the Centers for Disease Control and Prevention (CDC) have recommended that employers don’t require doctors’ notes due to the demands this would place on scarce healthcare resources.
A federal law known as the Genetic Information Nondiscrimination Act (GINA) bars employers from asking their workers for medical information about family members. Instead, according to the EEOC, the employer should ask whether the worker has been in contact with anyone who has been diagnosed with COVID-19 or shown symptoms of the disease.
Under the federal Occupational Safety and Health (OSH) Act, employers must keep the workplace free of recognized hazards, including health hazards such as infectious diseases.
Both OSHA (the federal agency that enforces the OSH Act) and the CDC have issued guidelines on social distancing, cleaning and disinfection, and other measures employers can take to minimize the spread of the disease. These resources can help you decide whether your employer is doing enough to keep your workplace safe.
If your employer isn’t maintaining a safe work environment, you should first raise your concerns with your supervisor or human resources department. If they fail to resolve your issue, you might wish to file a complaint with OSHA or your similar state agency.
The answer is unclear. The EEOC, the federal agency that interprets and enforces the ADA, has refused to provide a definitive answer despite many opportunities to do so. The agency has emphasized, however, that whether COVID-19 is a disability or not, employers have no duty to make workplace accommodations for individuals with COVID-19 because they pose a "direct threat" to others.
The CDC now recommends that individuals wear cloth face coverings in public areas to reduce their chances of contracting COVID-19. According to the CDC, surgical masks and N-95 respirators should not be worn by the public—these should be reserved for health care professionals.
If you suffer from a preexisting condition, such as an auto-immune disorder, that makes you more susceptible to COVID-19, your employer must reasonably accommodate your condition under the ADA. One such accommodation might be allowing you to wear a face mask or cloth covering. However, your employer doesn’t have to make any accommodation for you that would interfere with your ability to perform your essential job functions, or would cause the employer an "undue hardship."
If you don’t have a preexisting condition and aren’t protected by the ADA or any other state or federal law, your employer can theoretically refuse your request. In practice, responsible employers will allow their employees to wear masks whenever possible. Banning employees from taking simple safety precautions only breeds staff resentment.
No. Doing so would constitute unlawful discrimination under the Age Discrimination in Employment Act (ADEA) and the ADA. While it’s conceivable that the CDC might recommend employers take this step at some point, the agency hasn’t done so yet. Until that happens, employers must apply their policies equally to all employees—regardless of age, disability, or other legally protected characteristics.
You should let your employer know, either orally or in writing, that you'd like an accommodation due to a preexisting medical condition. Your employer is not required to accommodate you unless you affirmatively request an accommodation, even if your employer knows about your medical condition.
According to the CDC, individuals over 65 and those with certain underlying medical conditions are considered "high risk" for contracting COVID-19. The medical conditions include:
In addition, if you're immunocompromised because of cancer treatment, organ transplantation, immune deficiencies, or other reasons, you're considered high risk for catching COVID-19.
If you're at elevated risk for catching COVID-19 and you request an accommodation, you and your employer should engage in a dialogue to come up with job modifications that reduce your risk. These might include:
These ideas are not exhaustive. Your job duties and the nature of your workspace will largely determine what kinds of accommodations are reasonable.