Q. What are the immediately apparent effects of the pandemic, and the drive to reopen nonessential businesses, on employment discrimination law practitioners?
Driven in large part by the staggering unemployment rate and a desire to restart economic growth, states throughout the month of May taken steps to reopen their economies. For employers, and the labor and employment practitioners who advise them, this presents a multitude of employment-law compliance issues. Not only are employers faced with tremendous safety concerns for their employees, as well their customers, every decision they face regarding their workforce—such as which employees to bring back first, which to furlough, and which to let go, how to implement social distancing—is fraught with potential discrimination issues.
Competing obligations. To complicate things, the reopening process varies from state to state. Restrictions and obligations imposed on employers also may vary in regions throughout a state and by municipality, too.
To mask or not to mask?
Take the relatively “simple” issue of who should, and shouldn’t, wear face masks: While the CDC, in ever-changing guidelines, recommends for safety reasons that everyone wear a face covering in public, and OSHA recommends that workers wear face masks, must your employees wear them? If so, do you have to provide them? And if they won’t wear face masks, can you make them?
Differing requirements. The answer to these questions varies not only by state but by municipality and by the type of business (for example, restaurants and retail businesses will have different obligations than construction companies or golf courses). In New York, pursuant to an executive order issued in April, employees of essential businesses who are present in the workplace must wear face coverings when in direct contact with customers or members of the public. But in Texas, it is only suggested that employers consider having their employees wear face coverings—although numerous cities have more restrictive requirements.
How will employers keep up? Examples from a comprehensive list provided by Littler on state-wide face mask orders as of May 17 illustrate the differing requirements:
- Effective May 1, Delaware not only requires employees in public-facing roles to wear masks, employers are required to provide them—as well as hand sanitizer. In fact, Delaware requires all individuals to wear a face covering in specified public places (except where doing so would inhibit that individual’s health or where the individual is under two years of age), and a business must decline entry to an individual refusing to wear a face covering unless the business is providing medication, medical supplies, or food.
- In Florida, personal care services providers and employees must wear masks. They are also encouraged to provide masks to patrons and/or adopt a policy requiring patrons to wear masks.
- Kentucky requires businesses to provide “PPE” to employees, but masks are not required “when masking would create a serious health or safety hazard to the employee or when the employee is working alone in an enclosed space.” Employers might have to provide gloves, too, to employees whose job duties include touching items often touched by others, and TO replace the gloves regularly.
- South Carolina recommends that people wear masks in situations where social distancing may be difficult to maintain.
- In Utah, employers must require their employees to wear a face mask.
Keeping with all of these varying requirements is, no doubt, a daunting task for employment law practitioners. The COVID-19 Smart Charts, one of the resources available on Wolters Kluwer’s free Coronavirus Resources and Tools (COVID-19) website, and specifically the Employment/HR & Benefits “Back to Work” topic, provides brief summaries of state back-to-work requirements with links to full text regarding essential and nonessential businesses and other reopening mandates.
Accommodations under federal law. But don’t forget about the ADA. While the EEOC has indicated that employers may require employees to wear personal protective equipment (including face masks) during a pandemic such as the coronavirus, under the ADA, if an employee with a disability is unable to wear a face covering (or other types of personal protective equipment) due to a disability, an employer may have a duty to provide a reasonable accommodation, absent an undue hardship.
And to complicate things, a face mask itself can be a reasonable accommodation for employees whose underlying health conditions make them more susceptible to the coronavirus.
Addressing this concern, the EEOC, in its question and answer guidance on the pandemic, provides as an example an employer that requires returning workers to wear personal protective gear and engage in infection control practices. Some of its employees, however, ask for accommodations due to a need for modified protective gear.
As the EEOC explains, while employers may require employees to wear protective gear such as masks and gloves and engage in regular hand washing and social distancing, “where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification, or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.”
Retaliation for wearing a safer face mask? A lawsuit filed in March by a nurse against her hospital employer illustrates just one of the many issues facing employers. According to the complaint, the hospital not only required its employees to wear “face masks that were not Particulate Respirator N95 face masks,” it did not permit them to wear N95 face masks. Instead, she alleges, they were required to wear face masks that were less safe. She alerted not only her coworkers but also supervisors that the N95 masks were safer and more effective than the face masks distributed by the hospital and of her intent to wear the N95 face mask while working at the hospital. When she wore the N95 face mask to work, the complaint states, she was fired in retaliation for warning her “coworkers and/or supervisors that the distributed and mandated face masks were unsafe.”
New wrinkles on existing discrimination law
Regardless of where in the reopening process they are, employer must comply with federal, state, and local employment laws that impact so many of the day-to-day decisions they now face. For example, what if a returning employee is pregnant? What about older employees who are more at risk from the virus? And what about employees who may be afraid to come back to the workplace? While the same antidiscrimination laws that applied before COVID-19 still apply today, new issues are emerging as employers continue to adjust to an ever changing “new normal.”
Q. As businesses reopen, how has client demand for legal services changed in the employment discrimination area?
The need for COVID-19 related information creates greater demand for employment practitioners, and the issues are presented in an unfamiliar and perhaps unprecedented context. The EEOC is still updating and expanding its technical assistance guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, addressing COVID-19-related workplace issues.
Medical examinations. Employers likely never anticipated they would face so many questions about medical exams for their workers. The EEOC guidance explains that employers may ask employees whether they have tested positive for COVID-19, have taken a test for the virus, or have symptoms associated with COVID-19. Employers may even require employees to have their temperatures taken or to take a COVID-19 test before entering the workplace.
But what is less clear is how, and to whom, employers may disclose an employee’s COVID-19 positive status. The ADA requires employers to maintain confidentiality of an employee’s medical information, and the EEOC guidance states that the confidentiality requirements apply to medical information that an employer may collect during the pandemic.
During a March 27 webinar, the EEOC advised employers that, depending on the workplace, certain members of an organization may need to know whether an employee has tested positive for COVID-19, as well as the identity of the employee. As businesses reopen, employers will likely be seeking guidance on when it is appropriate to disclose an employee’s COVID-19 diagnosis: Which individuals in the company or organization need to know, and why?
Has what is considered a “reasonable” accommodation changed? How will the pandemic affect employers’ responses to accommodation requests? As businesses reopen, employees who have preexisting disabilities that put them at higher risk from COVID-19 may seek accommodations to limit their exposure to the virus. While employers clearly are not required to grant telework to every employee who requests it as an accommodation, the EEOC has encouraged employers to consider low-cost accommodations for employees who require reduced contact, such as one-way aisles and other barriers (plexiglass) to create distance between coworkers and customers.
What about undue hardship? COVID-19 has not changed an employer’s obligation to provide reasonable accommodations for employees with disabilities. However, the EEOC’s guidance acknowledges that some accommodations that would not have posed an undue hardship before the pandemic may pose one now.
The pandemic has created enormous economic and operational difficulties for many employers; nevertheless, employers are still required to provide accommodations, absent undue hardship, and cost alone will not be enough to deny an employee’s request for reasonable accommodation. Practitioners need to prepare for employers that seek guidance on engaging in the interactive process and identifying affordable reasonable accommodations given their new budgetary and logistical limitations.
Modified PPE requests. As they reopen, many employers will, either by choice or because of state or local action, require employees to wear personal protective gear and observe infection control practices, such as social distancing. The EEOC guidance advises that in the event that an employee requests an accommodation from such requirements, the employer “should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.”
Shifting protocols. The answer to whether a specific accommodation poses an undue hardship may be different than it was before the pandemic. And, as more information about COVID-19 becomes available, employers will be seeking guidance on how changing infection control standards affect their response to reasonable accommodation requests and undue hardship analysis. The answers will be constantly evolving as public health officials learn more about the virus, potential immunity, and the effectiveness of infection controls.
Q. What are some additional compliance-related concerns employers face as they return their employees to the workforce?
Caregiver responsibilities
While nonessential businesses may be reopening, schools and most daycares have remained closed, at least for now, and many summer camps are still deciding whether and when to open. For many working parents with young children, this has created childcare issues, which often impact women disproportionately. African-American women, single mothers, and low-wage earners may be especially impacted.
And caregiving responsibilities are not limited to only children. They also include providing care for elderly parents, who are especially at risk during this pandemic, or relatives with disabilities. As with childcare, this is a responsibility that often disproportionately affects women.
While no federal law expressly prohibits discriminating against an employee who is unable to work during the pandemic due to caregiving responsibilities, as an EEOC guidance points out, “Employment decisions based on such stereotypes violate the federal antidiscrimination statutes, even when an employer acts upon such stereotypes unconsciously or reflexively.”
For example, discriminating against workers with caregiving responsibilities may violate Title VII’s prohibitions against gender discrimination or the ADA’s prohibition on discriminating against an employee who is associated with a disabled individual, such as a parent, child, or spouse.
It’s actually pretty easy to imagine how this could occur during COVID-19. Examples include:
- Hiring or promoting a less qualified individual who has no caregiving responsibilities over a more qualified employee or applicant who does have caregiving responsibilities.
- Placing employees with caregiving responsibilities in lower-paying or less desirable jobs.
- Firing employees with a disabled spouse or child, or who have elderly parents, due to concerns over absenteeism.
Of course, the FMLA and the Families First Coronavirus Response Act (FFCRA) also provide childcare leave protections that employers must consider. For instance, the FFCRA, which applies to private employers with fewer than 500 employees, provides employees with paid sick leave and expanded FMLA leave in certain specified situations, including when the employee is unable to work because he or she needs to care for a child whose school or place of care is closed or whose child care provider is unavailable for COVID-19 reasons. In addition, some state and local laws may also provide caregiver protections.
Increased litigation. As a 2016 WorkLifeLaw report notes, even before the pandemic, lawsuits involving family responsibility discrimination issues increased dramatically over the last decade. And in the COVID-19 era? In April, a former director of revenue management for Eastern Airlines sued the company, its CEO, and its HR consultant under the FFCRA alleging she was denied leave and fired for requesting leave to care for her 11-year-old son whose school was closed for COVID-19 related reasons.
According to the complaint, the employee had both oral and email discussions with her supervisors, HR managers, and other company officials about her child care options, her need to take two hours of flextime each day to accommodate child care, her continued need to work from home, and her request for leave under the FFCRA due to her son’s coronavirus-related school closing. However, her leave requests were not granted. Because she was discharged before the effective date of the new law, however, her right to relief is unclear. Nonetheless, her lawsuit should serve as a wake-up call to employers as they try to keep or get their businesses up and running.
Older workers
According to AARP, in a January 2020 letter in support of H.R. 1230, the Protecting Older Workers Against Age Discrimination Act, more than six in 10 older workers “report seeing or experiencing age discrimination on the job. More than half of older workers are forced out of a job before they intend to retire, and even if they find work again, 9 in 10 never match their prior earnings.” And now, as the CDC points out, older adults have a higher risk of contracting a severe illness from COVID-19.
While the ADA requires employers to accommodate employees with disabilities, the ADEA, which governs discrimination against employees age 40 and older, does not. Nor do employers, according to EEOC guidance, need to accommodate older workers who may not want to return to the workplace out of fear of contracting COVID-19 simply because they are older.
- Underlying disability. What if an older worker has an underlying disability? Then the ADA may require the employer to provide an accommodation, potentially including working remotely, especially if the employee had already been working remotely as part of shelter-in-place restrictions.
- Underlying condition but not a disability. What if an employee 65 or older has a medical condition, such as diabetes, that puts her at higher risk for severe illness from COVID-19, but the underlying condition does not qualify as an ADA disability? According to the EEOC, the employee must notify her employer that she needs “a change” for a reason related to a medical condition.
Remote work as accommodation? The employer then may ask questions or seek medical documentation in order to determine if the employee has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. But if there is no underlying disability, can the employee request, as an accommodation, to work from home if she had done so successfully during the employer’s required work from home phase? While this may be unclear, as the EEOC points out in its March webinar on EEO laws, if an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers differently based on their age.
What if an employer, concerned for the safety of its older employers during the pandemic, instead requires that they stay at home rather than allowing them to return to the workplace? Even when the intention is to help, a policy that discriminates against older employees by requiring them to remain home while allowing younger employees to return to the workplace could be unlawful age discrimination.
Pregnant employees
According to the CDC, there is currently no evidence that COVID-19 affects pregnant women differently than other individuals. It points out, however, that pregnant women are at greater risk of getting sick from other respiratory viruses than people who are not pregnant. What does this mean for employers? The Pregnancy Discrimination Act protects employees from discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits such as leave and health insurance, and any other term or condition of employment.
Same accommodations as others with temporary disabilities. Under the PDA, employers are required to accommodate pregnant employees in the same ways that they would accommodate other nonpregnant employees “with temporary disabilities.” In certain situations, such as high-risk pregnancy, the ADA also may provide protections for pregnant employees. More than half the states and a handful local laws may provide even more protection, requiring employers to provide reasonable accommodations to pregnant workers.
Would an employer’s concern about a pregnant employee being exposed to the coronavirus allow the employer to layoff or furlough the employee who is pregnant but does not have COVID-19, or even any symptoms associated with the disease? The answer, says the EEOC in its webinar on the pandemic, is no. Employment actions based on pregnancy are employment actions based on sex, so decisions about layoffs or furloughs, or other employment decisions, should not be based on pregnancy.
Employers might consider, however, allowing telework as a potential accommodation. In its guidance, the EEOC addressed whether an employer could postpone the start date or withdraw a job offer because the applicant is 65 years old or pregnant. Said the EEOC, “the fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.”
Other potential accommodations might include:
- rearranging the workplace to provide for appropriate social distancing
- modifying work schedules to reduce workplace contact
- providing personal protective equipment, hand sanitizer, or air purifiers
“Chinese virus” fallout
Another area of heightened concern for employers is a potential increase in national origin discrimination claims. According to an April release from the Asian Pacific Policy and Planning Council, since March 19, there have been more than 1,100 reports of coronavirus discrimination (or as it’s been dubbed by some, the “Chinese virus”) from Asian Americans across the country. Similarly, a March New York Times article details numerous incidents of alleged harassment against Chinese Americans, including being yelled at, cursed at, spit on, and even physically assaulted by strangers.
In its webinar, the EEOC also noted it had received numerous questions about potential national origin discrimination, including whether an employer can single out employees based on national origin and exclude them from the workplace due to concerns about possible transmission of COVID-19 or tolerate a hostile work environment based on an employee’s national origin because others link that to transmission of COVID-19.
The answer, of course, is no. National origin discrimination is prohibited by Title VII and numerous state laws, regardless of any mistaken belief it is linked to the current COVID-19 pandemic. “Employers may wish to remind workers in these difficult times about policies on workplace harassment, and emphasize the broad nature of the prohibition against harassment—meaning that policies include a prohibition on any harassment based on national origin, among other bases, even if the harassment is linked to fear about the virus,” the EEOC advised.
Q. What lessons should employers keep in mind as they seek to bring employees back into the workplace?
Like employees who have continued to work in essential businesses, many employees just now returning to the workplace are concerned for their safety, especially if they must interact with the public. As the Occupational Safety and Health Administration, in an April statement, reminded employers, “it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic.” This statement from OSHA came shortly after a Washington Post article noting that thousands of complaints had been filed against companies related to safety concerns over the coronavirus.
Deaths on the rise. In a statement announcing its May lawsuit against OSHA seeking an emergency temporary standard to protect workers, the AFL-CIO noted that “thousands of workers have been infected on the job through exposure to infected patients, co-workers and unscreened members of the public. As the economy reopens and people return to work, person-to-person contact will increase, and health experts predict the already shocking number of infections and deaths among workers will rise.”
Lawsuits too. As deaths rise in an already overtaxed workforce, so do whistleblower and retaliation lawsuits. In an interview with Labor and Employment Law Daily, Kent Schmidt, a partner at Dorsey & Whitney, anticipates challenges for attorneys litigating these claims—both employers’ and plaintiffs’ counsel. “These cases will be unique, but the difficulty will also depend on the employer’s conduct,” he remarked. “Every trier of fact is going to bring their life experience as it relates to COVID-19, and there may be some degree of sympathy on how daunting compliance is. The question will be ‘Is this a true whistleblower or is this some who was discharged or laid off and trying to fit it in to COVID-19?’”
New bases for retaliation claims? The FFCRA amends the Family and Medical Leave Act to allow eligible employees to take leave to care for a son or daughter whose school or caregiver is closed or unavailable due to the COVID-19 pandemic. The FMLA’s anti-retaliation and anti-interference provisions presumably will apply to employees exercising these new leave rights.
Similarly, the Emergency Paid Sick Leave Act (EPSLA) includes anti-retaliation and anti-discrimination provisions making it unlawful for an employer to retaliate against an employee who takes leave or files any complaint (or institutes a proceeding or testifies in a proceeding) relating to EPSLA. The new law states that a violation of EPSLA will be treated as a failure “to pay minimum wages” under the FLSA and that liquidated damages and attorneys’ fees are recoverable.
Q. The level of uncertainty about COVID 19 and resulting legal responsibilities has created unease among both employers and employees. Where is that evident?
Consider some of the lawsuits, and threats to file lawsuits, that have arisen since the beginning of the pandemic. COVID-19 has forced employers to take measures to protect worker safety and to navigate a time of economic uncertainty. In doing so, employers may not violate employees’ rights to be free from discrimination in the process.
Layoffs and return to work. Almost all industries have been affected by layoffs and furloughs due to the economic effects of stay-at-home orders. It is critical to make sure that COVID-19 related layoffs or furloughs are not a pretext for discrimination. As businesses reopen, employers that are unable to bring back all laid-off or furloughed employees must require that legitimate business reasons drive the difficult decision of who gets to come back.
On May 7, an employee at a New York City law firm filed a lawsuit alleging that he was fired during the pandemic as part of his employer’s “plan to terminate their older employees in the face of the COVID 19 pandemic.” According to the complaint, on the day he was terminated, he was told it was for receiving kickbacks from vendors, but his employer allegedly “did not provide a single detail about these purported allegations against him, let alone give him an opportunity to defend himself.” As the second oldest person in his department, the employee alleged that his coworkers frequently made jokes about his age and he was first person to be terminated during the pandemic, while younger workers were subjected to “more favorable” cost-cutting measures such as voluntary leave or reductions in hours.
Many employers may be unable to bring back the entire workforce for economic reasons, but employers could still face liability if employees are chosen to return on a discriminatory basis. In its April 2020 Labor & Employment Alert, the law firm Fox Rothschild suggests employers identify a legitimate, nondiscriminatory reason for choosing which employees to return to work, such as seniority or employees with no disciplinary history.
Be aware of local requirements, too. On April 29, Los Angeles, California, Mayor Eric Garcetti signed an ordinance requiring covered employers in certain industries to make a written offer of recall to a qualified “Laid Off Worker” (defined in the ordinance) of any position which is or becomes available after the ordinance goes into effect. According to L.A. City Councilman Bob Blumenfield, one of the purposes of the ordinance is to protect older workers from being replaced “by newer cheaper labor once the economy rebounds.”
Discriminatory social distancing policy. EEOC Director Janet Dhillon recently issued a statement reminding employers to take steps to prevent race and national origin discrimination and harassment in the workplace after reports of increased physical and verbal harassment of Asian Americans.
For example, an Asian-American employee filed a charge claiming not that she was harassed or threatened at work, but that she was singled out by her employer’s social distancing policy. A report by FOX 4 Kansas City highlighted the EEO charge in which the Asian-American employee alleged that she was the only person in her office who was required to move six feet away from her co-workers. When she complained about the unfair treatment, she said she was terminated for being “unhappy” with her job.
The allegations in the charge illustrate the need for employers to implement infection control measures in a nondiscriminatory manner or have a legitimate, nondiscriminatory reason for enforcing the measures for only a subset of the workforce. The charge also illustrates the need for employers to have a process of documenting and responding to complaints to avoid potential liability for retaliation.
Coronavirus exposure discrimination? On her YouTube page, attorney Lisa Bloom announced that she is representing a former front desk worker at a California medical facility who alleged he was terminated after his employer discovered he was exposed to a patient that had tested positive for COVID-19, despite the employer not providing PPE to front desk staff. The employee tested negative for COVID-19, but the employer terminated him because it perceived him as being infected, he claims.
Direct threat. The EEOC has not yet determined whether COVID-19 is a disability. It has advised employers that employees who test positive for COVID-19 can be prohibited from entering the workplace as they pose a direct threat to the safety of other employees, but the agency has not advised that employees can be fired for testing positive for COVID-19. Bloom has not yet filed a complaint on behalf of the employee, but she plans to bring her claim under state law, and she asserts that it will be the first lawsuit alleging that an employee was subjected to discrimination because of his COVID-19 status.
If so, this lawsuit may illustrate how a court addresses whether COVID-19 itself is a disability and what protections the law provides for an employee who has, or is suspected of having, the virus.
All these cases are in the early stages and the employers have not yet responded to the allegations of discrimination. But these complaints still serve as examples for employers of the potential pitfalls as employees begin to return to work under very different circumstances than when they left.
Wayne Garris, Jr., is an employment law analyst for Labor & Employment Law Daily. He covers current developments in employment law for Wolters Kluwer Legal & Regulatory U.S. and has written on developments in class action litigation.
Kathleen Kapusta is a senior employment law analyst for Labor & Employment Law Daily. She has more than 25 years of experience covering employment law for Wolters Kluwer Legal and Regulatory U.S. and has written and edited publications on a variety of employment law topics.
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to 
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