With the ever-changing situation on COVID-19 the Equal Employment Opportunity Commission (EEOC) continues to guide employers on best practices in the workplace. We want to make sure you are as up to date with changes and guidelines as they come. As we discussed in our previous blog post on COVID-19 and ADA the EEOC has changed some guidelines to cope with the current situation. The recent changes include: being able to take peoples temperatures, being able to send sick people or people who were exposed home, and the do’s and don’ts of requiring doctors’ notes. With these significant changes in mind, this blog post outlines something that employers need to be mindful of at all times: discrimination.

               Discrimination in the workplace has never been allowed, most of us have taken anti-discrimination courses, we have policies in place for our teams, we have a system of reporting set up, and we retrain our teams every year on this topic. But with COVID-19 on the forefront of everyone’s mind we need to make sure our judgment is not clouded with discrimination. The EEOC has re-empathized that employers are not exempt from their antidiscrimination practices during this pandemic.

               You may be asking yourself, “how is anything I am doing discrimination when I am just trying to protect myself, my employees and my business?”. ? Unfortunately, there are times when you may be discriminating against an individual or group of individuals without actively meaning to. The EEOC is reminding employers be particularly careful to avoid age, national origin, and disability discrimination when implementing business response strategies. For example, you cannot only take the temperatures of those over age 50. Even though they are at the highest risk for Covid19, they must be treated like everyone else. Either everyone has their temperature taken or no one has their temperature taken.

               You also want to make sure your team is not making anyone feel unwelcome at work because of anything that would deem them ‘more likely’ to carry COVID-19 (such as national origin) as that would be creating a hostile work environment. Everyone deserves the right to come to work and do their job without feeling unwelcome or judged over things they cannot control.

If you see discrimination happening among your team you need to act. This is no time to sit back and say you understand the way people feel because of the current situation. Discrimination is never ok and should never be tolerated.

Furthermore, employers must continue to adhere to proper ADA practices.  The Center for Disease Control has identified a number of medical conditions, including chronic lung disease and serious heart conditions, that can put employees at a higher risk of severe complications from COVID-19.  Therefore, employees who are particularly vulnerable to COVID-19 due to a pre-existing health condition are entitled to request a reasonable accommodation under the ADA.  As an employer you need to remember that your obligations to engage in the interactive accommodation process does not change during this pandemic. You need to respond to accommodation requests promptly. Responding to the request can mean you ask for verification of the medical condition but also remember that doctors are extremely overwhelmed at the moment and you may need to work with the employee to receive documentation. If providing an accommodation would cause your business undue hardship you are able to deny the accommodation, however we suggest taking a partner before you do so to mitigate risk.

At the end of the day we all know that this situation is ever evolving and like nothing we have ever walked through before. However, we need to remember that people deserve to be treated fairly no matter what the circumstance. Your ability to be fair and ethical does not disappear because of COVID-19. If you have any questions on any of the things you read today, please do not hesitate to reach out. We are here to help you navigate the sometimes-mucky waters of discrimination, even during a pandemic.

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