Discrimination in the Workplace with COVID-19

Xenophobia is the “fear and hatred of strangers or foreigners or of anything that is strange or foreign.” Due to the recent COVID-19 pandemic, there have already been numerous reports of people of Chinese descent being discriminated against. Given these unfortunate reports, as well as heightened fear of contracting the virus, employers need to take steps to avoid any other misperceived judgments from occurring in the workplace.

It is the employer’s responsibility to be vigilant in protecting employees from any discrimination, retaliation, or harassment occurring in the workplace. The Centers for Disease Control (CDC) has announced that the COVID-19 virus is believed to be transmitted from person to person through small droplets from the nose or mouth, which occurs when a person coughs or sneezes and recommends that people stay at least six feet apart. The threat of the virus, coupled with fear and stress, can lead people to speak before they think and it is the responsibility of middle and upper management employees to be appropriate role models during this time. I am going to discuss the laws and standards in the workplace that your management team needs to be aware of and uphold during this state of emergency.

The Occupational Safety and Health Administration’s (OSHA) general duty clause requires employers to furnish each worker with “a place of employment, which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Some state plans do not have a general duty clause but enforce this same idea through different regulations.

At a time like this, delivering critical information is best digested when the employees can see the messenger. Creating a video message from the owner of the business addressing the importance of complying with the “six feet apart rule,” is more effective than sending out a mass email. A video message shows that the executive team cares and that the consequences for violating the policy are real.

The Americans with Disabilities Act
Asking employees if they have an auto-immune disorder, are feeling sick or asking to take their temperature are delicate subjects that need to be handled with care. The Americans with Disabilities Act (ADA) places restrictions on questions that an employer can make into an employee’s medical status. The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) considers taking an employee’s temperature to be a “medical examination” under the ADA.

EEO Law Discrimination, retaliation, harassment laws
All employers should have antidiscrimination, antiretaliation, and antiharassment policies that tell employees not to discriminate against others based on race, color, national origin, religion, age, gender, sexual orientation, or physical or mental disability. The CDC recently warned: “DO NOT show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have COVID-19.”

If an employee had recently visited China or was traveling outside of the country, the appropriate way to address concerns over the virus is for a manager to be able to show a nondiscriminatory reason for sending the employee home. Simply put, treat all your employees the same, based on the objective evidence and using the information provided by the CDC, World Health Organization (WHO), or OSHA, as well as the state agencies in effect in their jurisdiction to help make decisions.

Keep Calm
In this current climate, it is essential to train and coach your managers not to overreact to a sick employee and spread fear and panic. Managers need to treat each situation individually and not rely on generalities to make their decision. It’s important to take the time to analyze each case on its own merits and make the decision based on the available information. If the employee appears sick, take them to a private place to ask questions, and if needed, you can ask them to leave and seek medical attention.

Advise managers to be aware of all federal and state laws regarding discrimination and retaliation and how they can be violated if it appears they are enforcing rules to certain employees in protected classes. Revisit the antidiscrimination policies with all the employees and remind everyone they are free to report any discrimination without fear of retaliation, and all claims will be investigated. The right message and best practices during this trying time can uplift your company culture, increase morale and ensure your employees’ loyalty.

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