Months have passed since the first cases of COVID-19 were detected in the U.S. Employers must carefully balance the need to reopen businesses with regard for employment, anti-discrimination, and occupational safety and health laws. In this challenging time, employment issues may arise. The following shows how employers can protect their employees during this difficult time.
Laws Against Discrimination
Employers are required to provide a workplace free of discrimination for those in a protected class. In New Jersey, discrimination on the basis of race, gender, age, national origin, religion, and disability, among others, is illegal under the New Jersey Law Against Discrimination (NJLAD). The New Jersey Division on Civil Rights exercises oversight of discrimination allegations against employees in the workplace. Under the federal level, Title VII of the Civil Rights Act protects employees from unlawful discrimination.
The U.S. Equal Employment Opportunity Commission (EEOC) has also issued guidance regarding how employees in the workplace should be protected from a pandemic in compliance with non-discrimination laws. The EEOC grants employers greater discretion in light of the pandemic to protect their employees from serious harm from the virus. The agency has indicated that the following tactics are permissible to screen employees:
- Taking employee temperatures
- Asking if employees are experiencing symptoms of COVID-19
- Sending employees home if they exhibit symptoms of COVID-19
- Administering COVID-19 tests to employees before they enter the workplace.
The EEOC also handles cases regarding fair access to those with disabilities. Employers must make reasonable accommodations for employees with disabilities. However, employers are protected under a direct threat defense when an employee poses a direct threat for significant risk of substantial harm to the health or safety of themselves or others that cannot be eliminated or reduced by reasonable accommodation. At this time, someone infected with COVID-19 is considered a direct threat if present in the workplace.
Workplace Safety and Health Protections
The Occupational Safety and Health Act is designed to protect employees from recognized hazards in the workplace. Achieving this protection during a pandemic is particularly challenging. The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) developed guidelines for employers to consider during the pandemic.
They suggest imposing feasible social distancing protocols, disinfecting commonly touched surfaces, and requiring face-coverings to be worn. OSHA normally investigates complaints of workplace hazards. However, the agency is scaling back such investigations at this time to only cover high-risk businesses, such as nursing homes and meat processing plants. The agency is also evaluating whether employers exercise good faith in controlling the spread of the virus in the workplace. Due to shortages of N-95 masks, violations may not be issued to employers for failure to provide these respirators to employees.
There is consensus among public health experts that the combination of social distancing, disinfecting frequently touched surfaces, and universal use of face coverings significantly reduces COVID-19 transmission. As businesses begin to reopen to the public, they must balance protecting their employees from COVID-19, while also allowing access to the public. The Americans with Disabilities Act (ADA) forbids public accommodations from imposing eligibility criteria that screen out those with disabilities from full and equal access to goods, services, facilities, accommodations, and the like.
Employers are able to impose legitimate safety requirements that are necessary for safe operation. Safety requirements need to be based on actual risks and not speculation or stereotypes about individuals with disabilities. So far, the Department of Justice has not provided specific guidance in applying social distancing, face coverings, and other measures for public accommodations in a manner that complies with the ADA.
South Jersey Employment Lawyers at The Law Offices of Leo B. Dubler, III, LLC Advocate for Employees’ Rights
If your employer is requiring you to work in conditions that appear to risk COVID-19 infection, contact the South Jersey employment lawyers at The Law Offices of Leo B. Dubler, III, LLC. Returning to work during the pandemic can be fraught with uncertainty, especially if your employer is not conducting itself in a way that protects your rights. To set up a free consultation, call us at 856-235-7075 or complete an online form. Located in Mount Laurel and Atlantic City, New Jersey, we serve clients throughout South Jersey, including Cherry Hill, Burlington County, and Camden County.