COVID-19

Employer concerns

Mark E. Brossman, Ronald E. Richman, Donna K. Lazarus, Scott A. Gold, Melissa J. Sandak and Max Garfield, Schulte Roth & Zabel
Originally published in the February | March 2020 issue

As COVID-19 spreads across the globe, employers must act quickly while continuing to comply with applicable employment laws and the evolving guidance put forth by various government agencies. Below are some of the main issues facing employers and guidance on what employers can and cannot do.

Potentially infected employees

If an employee exhibits flu-like symptoms while at work, employers are permitted to ask them to seek medical attention. Employers can ask employees to get tested for COVID-19 as long as the employee’s condition could pose a “direct threat” to the workforce, defined as a “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Moreover, according to guidance set forth by the Equal Employment Opportunity Commission (“EEOC”), an employer may require symptomatic employees to go home without violating the Americans with Disabilities Act (“ADA”). If an employee tests positive for COVID-19, employers are expected to send home all employees who were in close contact (within six feet) with that employee for a 14-day self-monitoring period to help prevent the spread of the infection. The employer should then inform other employees in the same work location or facility of this potential exposure to the virus in the workplace.

Discrimination and harassment issues

Employers should ensure the confidentiality of employee medical information to prevent discrimination and harassment against employees exhibiting symptoms. All practices and policies regarding COVID-19 must be uniformly applied to avoid the risk of employee discrimination claims (i.e., employers should not treat employees differently based on their ethnicity, national origin, disability, age or any other protected class).

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