Discrimination and Harassment Law and Practice

I recently explained how employers can legally respond when an employee tests positive for COVID-19 in an article for the Washington Business Journal. Many employers think the Health Insurance Portability and Accountability Act (HIPPA) protects employee health information, but that pertains specifically to health providers.

For employers, the Americans with Disabilities Act, protects the privacy of a workers health records and information, so employers may ask employees if they’ve tested positive for the coronavirus, but must keep that information confidential in accordance with the ADA.

When it comes to taking an employee’s temperature, the Equal Employment Opportunity Commission allows employers to get thermometer readings given the potential direct threat to others who could be exposed. I advised in the article to “treat this like a real medical test,” and go to a private room to take someone’s temperature and keep results completely confidential in that employee’s medical file.


Continue Reading Working in the Age of the Coronavirus

COVID-19 is spreading and testing, in many states, is increasing.  As a result, increasing numbers of employers will be faced with the reality of an employee testing positive for COVID-19.  When that happens, what’s an employer to do?  Below are some FAQs about COVID-19 in the workplace.

An employee has tested positive.  What can an employer do?

Send the employee home immediately.  The employer may require a doctor’s note releasing the employee to return to work, although the CDC has asked employers to consider foregoing such documentation due to current healthcare constraints.  If the employer chooses to forego the medical release to work, the CDC has provided that employees should not return to work until they are free of fever (without the use of fever-reducing medications) and any other COVID-19-related symptoms for at least 24 hours.  The CDC has indicated that healthcare professionals diagnosed with COVID-19 may return to work after seven days have passed since symptoms first appeared AND after three days have passed since resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms.

The employer should consider a deep clean of the employee’s workplace, including common areas.  The employer has the option to notify the diagnosed employee’s co-workers of the diagnosis, without releasing the employee’s name.  A sample notice is below:


Continue Reading COVID-19 in the Workplace: Employer FAQs

According to the National Restaurant Association, older adults have been the fastest-growing cohort of employees, and mismanaging those workforce dynamics can pose some compliance issues and concerns for employers. I recently discussed ways for employers to respond to the growing age gap in the restaurant industry in a recent article for Modern Restaurant Management.

Although most employers know that age is a protected category and there is no “mandatory retirement age,” compliance issues may arise when employers are careless in the ways they address performance management in older employees.


Continue Reading Age Discrimination in the Restaurant Industry

We are excited to share the next installment of our video series, Conducting Workplace Investigations | Step #6: Interview Best Practices. This series, 10 Steps Every Company Should Take When Conducting Workplace Investigations, is intended to guide HR leaders faced with investigating a complaint between coworkers, such as harassment or inappropriate conduct,

We are excited to be presenting a CLE webinar titled, “An Employer’s Obligations in the ADA Interactive Process” on February 11.

This 60-minute webinar will examine employers’ obligations within the interactive process, including how to recognize qualifying accommodation requests, what information an employer should request and be provided, and the process of exploring accommodation options

We are excited to share the next installment of our video series, Conducting Workplace Investigations | Step #5: Interview Best Practices. This series, 10 Steps Every Company Should Take When Conducting Workplace Investigations, is intended to guide HR leaders faced with investigating a complaint between coworkers, such as harassment or inappropriate conduct,

This was originally posted on November 7 and has been updated to include the more recent article.

I recently discussed the potential for age discrimination in the workplace when companies focus too much on recruitment of young employees. The article argues that by focusing solely on young talent, organizations miss out on the “perspective” and

Managing an employee who is struggling with alcoholism or substance use disorder can be challenging for employers. While both conditions could be protected under the Americans with Disabilities Act Amendments Act (ADAAA), there are differences in how each condition is treated under the law.

Understanding these differences is essential for any HR professional in implementing a plan after discovering that an employee’s work performance or ability to work is being affected by alcoholism or substance use.


Continue Reading Are Employees with Alcoholism and Substance Use Disorder Protected under the ADAAA?

In light of U-Haul’s recent announcement it will no longer hire nicotine users in many states, I recently discussed the laws governing this company policy. Many states, such as Tennessee, implemented laws decades ago that protect smokers.

However, as I stated in the article linked below, Tennessee’s “statute is silent as to whether this protects someone from not being hired.” My take is that “employers will likely be watching closely how refusing to hire smokers pans out since there are many other lifestyle choices that affect health.”


Continue Reading No-Nicotine Hiring Policies

We are excited to share the next installment of our video series, Conducting Workplace Investigations | Step #4: Perfect the Plan. This series, 10 Steps Every Company Should Take When Conducting Workplace Investigations, is intended to guide HR leaders faced with investigating a complaint between coworkers, such as harassment or inappropriate conduct,