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Coronavirus: Workplace Safety and Discrimination Concerns

• Mar 17, 2020

Coronavirus Background

The new coronavirus, COVID-19, is a pneumonia-like infection with symptoms ranging from mild to severe and manifesting as respiratory illness, fever, cough and difficulty breathing. The Centers for Disease Control (CDC) believes that symptoms may appear in as few as two days or as long as 14 days after exposure. A CDC-developed test has been created and is being produced at various health centers in the United State at this time.

The CDC has announced that COVID-19 is believed to be transmitted from person to person through small droplets from the nose or mouth, which occurs when a person coughs or sneezes. The CDC recommends that people stay as much as six feet away from anyone who is sick or has symptoms. It could be possible to be infected by COVID-19 by touching the surface or an object that has the virus on it and then touching your mouth, nose or eyes.

Workplace Laws Employers Should Recognize with COVID-19

There are several OSHA standards that may apply to COVID-19 issues, but the one most relevant is the General Duty Clause, Section 5(a)(1) of the OSH Act of 1970, which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Some state plans do not have a General Duty clause but enforce this same idea through different regulations.

Employers are asking numerous questions relating to COVID-19: What can I do if my employee appears sick? Can I ask my employee to stay home if they appear sick? Can I take their temperature before they start work? These aren’t necessarily new and novel issues, as they arose with H1N1, SARS and MERS years before.

Employers have always been permitted to send home their employee if that employee presents obvious signs of illness (not just COVID-19). However, in this current climate, it is important to train and coach your supervisors not to overreact to a sick employee and spread fear and panic. They need to treat each situation as its own case and not rely on generalities to make employment decisions. If the employee appears objectively sick, you can ask them to leave and seek medical attention (however, this should be done confidentially in a one-on-one setting, as opposed to out in the open with the rest of the workforce). However, employers should exercise caution when deciding to require employees to get their temperatures taken before beginning work.

The Americans with Disabilities Act (ADA) places restrictions on questions that an employer can make into an employee’s medical status, and the Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

Taking an employee’s temperature could be improper, as these are hard presumptions to overcome. The important thing to consider is that each of these inquiries are fact-specific and are going to vary from employer to employer and industry to industry. Employers need to take the time to analyze each case on its own merits and decide based on the available information. Employers are still subject to all federal and state laws regarding discrimination and retaliation in the workforce and could violate either if it appears they are administering rules differently to different classes of employees based on race or national origin, among other protected classes.

COVID-19 and Discrimination in the Workplace

Webster’s defines xenophobia as “fear and hatred of strangers or foreigners or of anything that is strange or foreign.” The history of pandemic infectious disease outbreaks usually leads to unwarranted attacks on a certain group of people for its origin. Two recent pandemics highlight this issue: H1N1 (or the “Swine Flu”) and Ebola.

In 2009, a strain of H1N1 influenza resulted in a pandemic. Some of the first cases of H1N1 were discovered at pig farms located in Mexico. As a result, Mexicans, Latin Americans, and others of Latin American decent were stigmatized and blamed for the virus and it spread. However, there was no evidence to suggest that people of Mexican or Latin American descent were the cause or spread of the disease.

Additionally, in 2013, the Ebola virus appeared in America when Eric Duncan, a Liberian man, was diagnosed with the virus in Texas. Similar to H1N1 with people of Mexican nationality, xenophobic talk stigmatizing Africans and African-Americans soon spread. Most of these examples highlight the xenophobia that exists in the public during these outbreaks, but you can be certain that the same kind of issues will arise in the workplace. As a result, employers need to be vigilant in protecting their employees from any discrimination, retaliation, or harassment stemming from xenophobic rhetoric from employee to employee or from supervisor to employee.

Like H1N1 and Ebola, one group in particular is likely to be scapegoated for COVID-19: people of Asian descent, particularly people of Chinese national origin. There have already been numerous reports of people of Chinese descent being discriminated against, including declining sales in Chinatown districts and attacks against people of Chinese descent in public. Given these reports, employers should take steps to prevent any such similar actions from taking place in the workplace.

Almost all employers have general anti-discrimination, retaliation and harassment policies in place. Those policies should make clear that employers—or colleagues for that matter—do not discriminate against employees based on national origin. The CDC recently warned: “DO NOT show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have COVID-19.”

There are two areas of concern employers should focus on in this analysis: (1) How do I make sure I’m treating all my employees the same regardless of national origin? and (2) How do I make sure my employees aren’t discriminating/harassing my employees of Asian descent?

To address the first question, employers should ensure that they do no base a decision to bar or remove an employee from the workplace based on national origin or ethnicity. These decisions are looked at objectively compared to the rest of the workforce. Does it appear the employer is only quarantining employees of Asian descent? What is the mix of employees that have been sent home from the workplace? The employer needs to base these decisions on the facts present at the time the decision was made.

There is an appropriate way to approach concerns over the virus. For instance, an employer will likely be able to show a non-discriminatory reason for sending the employee home if the employee had recently visited China or another highly affected area, or the employer can objectively document the employees were exhibiting flu-like symptoms. In short, make sure you treat all your employees the same, based on the objective evidence at your disposal at the time of the decision. Employers should rely on the resources provided by the CDC, WHO or OSHA, as well as the state agencies in effect in their jurisdiction to help make decisions.

As to the second question, employers will need to be especially diligent and closely monitor any concerns by employees of Asian descent in their workforce. One of the best ways to get in front of this issue is to provide your employees with information and training. Explain to your employees the concerns with COVID-19, the best ways to minimize exposure, and that no nationality is more likely to spread the virus than another. Furthermore, employers should continue to enforce their harassment policy and investigate claims made by any employees of discrimination or harassment based on national origin and take appropriate disciplinary steps against any employees found to be in violation of the policy.

The policies an employer puts forward are only as effective as the people put in charge to enforce them and that starts from the top down. It is important to make sure your supervisory employees are leading by example in this area.

What Steps Should I Take to Minimize Risks?

Given the information currently known, some of the best practical advice for employers is as follows:

• Provide your employees with information on COVID-19 and let them know you are consistently monitoring the various public agencies (CDC, WHO, local department of health) and will provide the most up-to-date information as you receive it.

• Review and update your policies on working from home, including considering implementing a temporary remote work policy if your industry allows for it.

• Design a plan of action on how you will respond if one of your employees is suspected or confirmed positive for COVID-19.

• Review and update your policies regarding paid time off (PTO) or sick leave to address concerns unique to COVID-19.

• Remind your employees of your anti-discrimination policies and that everyone is free from discrimination in the workplace. Remind employees they are free to report any discrimination without fear of reprisal.

• Finally, inform your employees not to panic and that you are taking all reasonable steps to ensure their safety at the workplace. It’s important to listen to scientists and not the word-of-mouth panic that sometimes circles.