Paternalism in the Age of COVID-19 Can Trip Up Well-Meaning Employers

By Tracey I. Levy

Employers are authorized, and to some degree required, to intrude into their employees’ personal lives and health issues as a screening tool to prevent the spread of COVID-19 in the workplace.  It is critical to remember, however, that the inquiries employers may currently be posing with regard to employees’ recent travel activity, physical health, and contacts with others represent a very limited exception to the general principle that employees in the U.S. are legally entitled to keep their health information private from their employers and to maintain autonomy over their engagement in lawful activities on their personal time.  Well-meaning employers, concerned for their employees’ welfare, may unwittingly run afoul of federal, state or local laws if they probe unnecessarily into the activities of their employees or place restrictions on where and when employees can work.

 

Reporting Positive COVID-19 Results

One issue that may trip up employers is requiring remote workers to report if they have tested positive for COVID-19 or are experiencing any COVID-like symptoms.  These are precisely the inquiries that employers can pose when screening employees who are physically coming into the workplace and will thereby be in contact with other individuals.  But the same questions are not permissible with regard to remote workers.  Guidance from the Equal Employment Opportunity Commission (“EEOC”) and New York City make clear that an employee who is working remotely and has not had in-person contact with colleagues or customers has no obligation to notify the employer of a positive COVID-19 test result or if they are experiencing COVID-like symptoms.

 

Working While Under Quarantine

Employees in New York who are under a quarantine or isolation order are not eligible for New York State COVID-19 leave if they are still able to work remotely while under quarantine.  If an employee has been quarantined because the employee has personally contracted COVID-19, New York City has issued testing guidance that if the employee can work remotely from home and feels well enough to do so, the employee need not take time off.  The guidance does not authorize employers (no matter how well-meaning) to preclude an employee who is able to work remotely from doing so just because the employee is experiencing symptoms of COVID-19.

 

Higher-Risk Individuals in the Workplace

The EEOC and the New York City Commission on Human Rights have both issued guidance that policies intended to be benevolent, that prohibit older workers from returning to the workplace because their age places them at a higher health risk if they contract COVID-19, are legally impermissible.  The same is true, according to the EEOC guidance, for removing pregnant or disabled employees from the workplace during the pandemic.  Employers must consider remote work requests from pregnant and/or disabled employees as a reasonable accommodation, but if no such request has been made, then the employer cannot mandate a telework arrangement based solely on an employee’s pregnancy, nor can an employer impose such a mandate with regard to an individual with a disability other than in extremely narrow circumstances where the employee’s presence in the workplace is found to present a “significant risk of substantial harm” to the employee and no other accommodation would suffice.

 

Accommodating Older Individuals to Keep Them Safe

New York City employers also can create issues for themselves if they authorize employees to work from home based solely on their age, or provide greater pandemic protective measures in the workplace just for older employees.  Employees, of any age, with underlying health conditions, may be entitled to work remotely as a reasonable accommodation for a disability.  Where the employee is not asserting any risk factor other than age, the NYC Commission on Human Rights has taken the position that the employer must treat all employees the same regardless of age.  The employer is not legally required to accommodate such individuals with remote work or additional precautionary measures, but if it chooses to do so then the option must be made available in an age-neutral manner.

 

Getting the All Clear from the Doctor

Finally, employers that want to be sure an employee really is well enough to return to work after contracting COVID-19 should restrain their instinct to require medical documentation.  Per CDC guidance, employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. The CDC states requiring a negative COVID-19 test result also is not an appropriate criterion for such employees to return to work, as many people test positive long after the infectious period has ended.

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