With Covid-19 still being very active in New York and businesses struggling to normalize operations, it’s expected that employers would want to do everything they can to protect their employees from contracting the virus, and to help prevent the spread of it. This would include the inclination to recognize high risk employees. However, employers must be careful that in the zeal to prevent the spread of the virus that they don’t break employment anti-discrimination laws. While it’s permissible for employers to take measures to do this, there are certain things that they can’t ask employees and certain requirements that they can’t make.
While New York employees can rely on state, and local laws that can help protect them from employment discrimination, The Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination employment laws, including The Americans with Disabilities Act (ADA) and the Rehabilitation Act. These laws, which prohibit discrimination against persons with disabilities and forbid medical exams indeed apply during Covid, but the EEOC provides guidance on appropriate employment behavior during a pandemic, which may include some differences.
Distinction Between an Applicant and an Employee
During recruitment, when an individual is an applicant without a conditional job offer, the organization usually can’t ask about disabilities or health; they can ask these things between the time of the offer and when the applicant begins work, as long as they are required for everyone in the same job category.
Questions that an Employer can ask the Employee
- Symptoms: Employers who are covered under the ADA may ask their employees if they are experiencing any Covid-19 symptoms, such as a fever, sore throat, chills, and shortness of breath.
- Measuring Body Temperature: Because a fever is one of the signs of the coronavirus, employers are allowed to take an employee’s temperature. This isn’t farfetched at all, due to the community spread of Covid. Additionally, this is equivalent to customers of certain stores who have their temperatures taken before they are allowed access to shop.
- Diagnosis of Covid-19: Employers may ask all employees upon entering the workplace if they’ve been diagnosed or tested for the coronavirus because a positive test indicates that the individual has a present infection and may likely be able to spread it to others.
- Whether an employee has had contact with Covid: Employers are permitted to ask employees whether they had contact with anyone who has the virus or who has symptoms of the virus.
Questions A New York Employer Cannot ask the Employee
- Requiring antibody testing to re-enter the workplace: An employer can’t ask an employee for an anti-body test to return to the worksite because the anti-body test is considered a medical exam under the ADA.
- Asking one particular person questions designed to determine if they have the virus: An employer can’t pull apart one employee for testing or screening without doing this for all employees, unless there is a reasonable belief by the employer (based on objective evidence) that the employee has Covid-19.
- Asking about family members’ Covid status: The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about their relatives.
Discuss Employment Law Issues with an Experienced Attorney
With the pandemic changing some many things, it’s normal to be curious regarding what you must disclose to your employer. If you think that you’ve experienced discrimination in your workplace or that your employer has otherwise violated your rights, discuss your concerns with an experienced employment attorney at MOWK Law. Contact us today answer your questions and to take action.