Those questions, fraught in normal times, are coming to the fore as workers and businesses navigate a new environment where a sick colleague isn’t just an inconvenience, but a potential threat to the company and the workforce.
Federal law prohibits discrimination based on disabilities, and companies have to walk a fine line between protecting worker health and complying with labor laws. But a number of workers in California have already filed complaints with the state alleging discrimination related to the coronavirus, highlighting a new legal battlefield.
During an epidemic or pandemic, employers do have more leeway to seek medical information if it is done to protect other employees from infection.
Before it shut down operations at its Fremont plant last month, electric car maker Tesla took employees’ temperatures as they entered the factory, to guard against sick employees potentially spreading the coronavirus.
The Equal Employment Opportunity Commission updated existing guidance for employers in March, saying the coronavirus is similar to past influenza pandemics and employers can request information from employees about symptoms, take their temperatures at work and require that they stay home.
The commission specified that employers cannot ask an employee who is not displaying symptoms of illness whether they have other medical conditions that make them more vulnerable to an infectious disease.
Not all employers seem to have stuck to these rules. San Francisco mobile gaming company Skillz recently sent a document to employees asking if they have certain afflictions, including HIV/AIDS, hepatitis, tuberculosis or the coronavirus, to avoid infecting others. In the document obtained by The Chronicle, the company promised to keep sensitive medical information confidential.
The policy did not specify why the company needed detailed information on employees’ health. Skillz did not respond to an email asking questions about its policy.
In the document, Skillz said employees exhibiting symptoms of a range of ailments or those at higher risk from exposure could be encouraged to leave work and seek medical attention.
In assigning dangerous work — and these days, being a cashier in a grocery store or a delivery courier can qualify — managers might want to consider whether an employee is particularly vulnerable to COVID-19. Those with weakened immune systems or other conditions can face more of a threat from the respiratory disease caused by the coronavirus. But it’s not clear if employers can ask about those conditions, even with a pandemic raging.
Ordinarily, “asking if someone’s immune system is compromised might be problematic because it might be a disability,” under the federal Americans with Disabilities Act, said Catherine Albiston, a law professor at UC Berkeley.
Employers can make medical inquiries after offering employment as long as they do so to all workers in a particular job classification, although they are required to keep information confidential under state and federal law, Albiston said. “Employee-related disability inquiries have to be job-related and consistent with business necessities,” she said.
Pandemic or no, employers also have a duty to maintain a safe workplace. Determining if someone is ill with the coronavirus or another condition can be part of doing that — but that does not mean employers have to ask about a particular condition, Albiston said.
Employers are prohibited from firing workers simply because they are ill, but sick workers can be laid off alongside the well as the economy continues to sputter.
The line between a discriminatory firing and an economically necessary layoff is not always clear.
Kevin Kish, the director of the California Department of Fair Employment and Housing, said his office had received three coronavirus-related complaints in recent weeks and that one case had involved a health care worker who lost a job.
“What we’re seeing in some of these cases is an overlap between health and safety protections and anti-discrimination protections, administered at the state and federal level by different agencies,” Kish said.
The agency is encouraging the cases to go to mediation to avoid lawsuits but “I’m sure that in some of these cases, we’ll see litigation out of this crisis,” Kish added.
Attorney Lisa Bloom said she is working with a former front desk worker at a Bay Area medical facility who lost his job after being exposed to a patient with the coronavirus. He was not given protective equipment, she said. The worker was sent home after a patient with the virus came to the desk where he worked. He lost his job the next day, despite subsequently testing negative for the virus, Bloom said.
Bloom said her client, who has not yet filed a complaint or lawsuit, wanted to remain anonymous for fear of further retaliation. She did not disclose the name of the employer.
State law prohibits discrimination based on a medical condition, but Bloom said the law applies to only a few specific illnesses, like cancer. This case, she said, appeared to fall into the state’s disability law, which is broader than federal law, and defines disability as a physical or mental condition that affects a major life function.
What is permitted under state and federal law is highly dependent on the facts of a particular case, said Karla Kraft, an attorney at the Stradling law firm.
An employer also does not necessarily need to make specific inquiries to protect other workers, said Jason Geller, an attorney who manages the San Francisco office of law firm Fisher Phillips.
“I would not encourage employers to start inquiring on their own about whether an employee is vulnerable or not,” Geller said. He added that a company can inform workers about risks of or from infection and encourage them to come forward: “That would be incumbent on the employee.”
©2020 the San Francisco Chronicle. Distributed by Tribune Content Agency, LLC.
