EEOC and NJ’s DCR Publish COVID-19 Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (DCR) have joined a growing number of governmental agencies and public health organizations in issuing specific COVID-19 related guidance. The EEOC and DCR guidance each includes a series of frequently asked questions directed at ensuring compliance with federal and state anti-discrimination laws in the treatment of individuals affected by the novel coronavirus, in connection with employment, housing, and places of public accommodation.

The DCR guidance, “Civil Rights and COVID-19: Frequently Asked Questions,” reminds employers, housing providers, and places of public accommodation of their obligations under the New Jersey Law Against Discrimination (LAD) and the New Jersey Family Leave Act (NJFLA). Among the topics covered by the DCR, the guidance:

• Reminds employers that the prohibitions against discrimination and harassment because of an LAD-protected characteristic apply even when the conduct at issue “stems from concerns related to COVID-19.” The DCR explains that firing an employee who is perceived to have a disability related to COVID-19 is unlawful. In addition, behavior such as referring to COVID-19 as the “the Chinese virus” or harassing employees of East Asian heritage by claiming Asian people caused COVID-19 is expressly prohibited, and employers must take steps to immediately stop the behavior.
• Reminds landlords and building managers that they cannot refuse to make repairs to apartments occupied by East Asian tenants out of fear of contracting COVID-19 or refuse to rent to people of East Asian heritage for the same reason.
• Advises that places of public accommodation cannot discriminate against or harass individuals because of their actual or perceived LAD-protected characteristics, even if the conduct stems from COVID-19 related concerns. For example, a school must take action to stop a student who repeatedly refers to a classmate as having the coronavirus because the classmate is from China, and a bus driver or bus company must stop a public bus patron from screaming at another patron wearing a yarmulke that “Jews are spreading the virus.”
• Permits retail establishments to confine certain store hours to customers over a certain age, because age is not a protected characteristic in places of public accommodation.
• Confirms that eligible employees who need to care for family members who have been diagnosed with COVID-19 are entitled to leave under the NJFLA and that all employees who are diagnosed with COVID-19 or must care for family members who were diagnosed with COVID-19 can use accrued Earned Sick Leave under New Jersey law. Additionally, an employee may use New Jersey earned sick leave if his or her child’s school or daycare is closed by a public official for a public health reason.

The EEOC guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” offers specific answers to COVID-related questions. The guidance, initially published in 2009 but updated to particularly address the COVID-19 pandemic, explains that “[t]he ADA, which protects applicants and employees from disability discrimination, is relevant to pandemic preparation in at least three major ways. First, the ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a ‘direct threat’ (i.e., a significant risk of substantial harm even with reasonable accommodation). Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.” These concepts are not new, but their application in today’s world takes on new meaning. In the updates, the EEOC directs as follows:

• The COVID-19 pandemic meets the direct threat standard and, therefore, an employee with COVID-19, or symptoms of it, poses a significant risk of substantial harm.
• Because the Center for Disease and Control has acknowledged that COVID-19 is community spread, employers may send home employees who are exhibiting symptoms of COVID-19, question an employee about his or her symptoms to determine if the employee has COVID-19 when an employee claims to feel sick at work or calls in sick, and take an employee’s body temperature. However, like all medical information, an employee’s symptoms, including a fever, are subject to ADA confidentiality requirements.
• Employers may implement “infection-control practices” at the workplace, including regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal. Employers may also require employers to wear personal protective equipment. However, if an employee needs a related reasonable accommodation under the ADA (e.g., non-latex gloves or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
• Employers may screen job applicants for symptoms of COVID-19, including taking applicants’ body temperatures, after making conditional job offers, so long as they do so for all entering employees in the same types of job.
• Employers may delay the start dates of any applicants who were diagnosed with COVID-19 or are exhibiting symptoms related to COVID-19. Additionally, a job offer for a position that requires an immediate start may be withdrawn if the applicant has been diagnosed with COVID-19 or is exhibiting symptoms of COVID-19 and therefore cannot start immediately.

The members of the Gibbons Employment & Labor Law Department are available to assist you in managing the many workplace issues and concerns during the COVID-19 pandemic.