Non-Discrimination Practices During the COVID-19 Outbreak

We continue to monitor the Coronavirus/COVID-19 outbreak very closely. Alongside continuing to practice important prevention and mitigation measures, it will be critical for organizations to think about how they communicate information with their employees. Because the situation is changing rapidly, and with new updates coming in by the hour, organizations may need to make decisions or put together announcements very rapidly.

Even as we respond in real time, however, it is important that we do so in a manner that is consistent with our values. This includes following protocols that guard against workplace discrimination or other prohibited practices. Because many of the provisions against workplace discrimination relate to employee health, a public health crisis like the current outbreak can pose particular challenges.

The following FAQ is designed to help you communicate effectively during a time of crisis. However, please contact us if you would like further guidance or to discuss any specific scenario at your organization.

If an employee calls in sick, what questions can I ask?

The Americans with Disabilities Act (ADA) prevents employers from asking health-related questions to their employees, unless the employee poses a “direct threat” to other staff or operations. The CDC’s definition of “direct threat” enters into a gray area during times of pandemic. To avoid uncertainties and discrimination, we recommend not asking questions about an employee’s symptoms.

We do recommend you ask all employees to notify one person in leadership (such as the HR director) if they or a family member has been exposed. This creates a means to self-report where employers do not have to ask questions. If the employee calls in sick, without a self-report of COVID-19, it should be treated as a normal sick day.

If an employee is in a high-risk category and may be advised to miss work, what questions can I ask?

There are very few questions you are able to ask about an employee’s medical history. Directly asking an employee about their immune system is a question that likely will force the employee to disclose the existence of a disability and should not be asked to employees. Asking an employee to disclose a medical condition, a pregnancy or their age should also be avoided. This could be deemed as discrimination. It is acceptable to ask employees to self-identify if they fall into this category. Communication may look like this:

“The Centers for Disease Control recommends that all people with a higher risk of illness associated with COVID-19 should avoid their risk of exposure as much as possible. This may include staying home from work or working remotely. The higher risk group includes older adults (those aged 65 years and older) and people with chronic medical conditions (such as heart disease, diabetes or lung disease). If you are in this category and would like to discuss work options, please discuss with your HR director.”

If an employee comes to work with flu-like symptoms, can I send them home?

Yes. You are able to ask employees displaying symptoms of illness to leave the workplace. We recommend that you not ask additional medical questions of that employee, simply ask them to go home.

If an employee is diagnosed with COVID-19, who should know?

A diagnosis of COVID-19 is considered private medical information that should not be shared widely. If an employee self-reports this information, it should be communicated to the leader designated (such as the HR director). This leader will not disclose information to the employee’s supervisor, the employee’s direct reports or any coworkers. It is acceptable to share that an anonymous employee within the office has been diagnosed.

If an employee is diagnosed with COVID-19, what should we do?

The CDC advises that COVID-19 is mainly spread from person-to-person contact. Experts believe that the virus can travel about six feet in distance. Therefore, anyone within six feet of the person diagnosed may have been exposed. Because you’re not able to identify who has been diagnosed, it becomes difficult to communicate who could potentially be exposed. When identifying and communicating potential exposures, we recommend following the same procedures for all staff within the facility where the exposure happened, instead of isolating certain groups of staff.