Weeks of nationwide protests over the killing of George Floyd by police in Minneapolis have coincided with a spike of Covid-19 cases across the Sunbelt, and the national discourse is fraught over whether the protests themselves, an increase in testing, or reopening too quickly are to blame for the increase in cases.
Regardless of the cause, some employers may be concerned about the risk posed by the return of employees who have participated in protests to newly reopened workplaces. Similarly, employees may want to know whether their increased risk of exposure could affect their job security, and what their rights are in this situation.
Can my employer require that I take a Covid-19 test after protesting but before returning to in-person work?
Sort of. According to the latest EEOC (Equal Employment Opportunity Commission) guidance, employers can administer Covid-19 tests before allowing employees to enter the workplace. Some employers will require this testing of everyone before reopening the workplace.
However, employers cannot single out an employee they know or suspect attended a protest and require that person to get tested, unless that person has shown symptoms of Covid-19. Under the Americans with Disabilities Act (“ADA”), during this pandemic employers are permitted to ask employees if they are experiencing Covid-19 symptoms, such as fever, chills, cough, shortness of breath, sore throat, or other emerging symptoms based on changing federal guidance.
If an employee has symptoms of Covid-19, the employer is within its rights to require the employee to stay home and to forbid them from returning to the workplace until they can produce a doctor’s note certifying that they do not or no longer have Covid-19. This is called “fitness-for-duty documentation,” and is ideally a negative Covid-19 test result.
Can my employer force me to stay home even if my Covid-19 test came back negative and I have no symptoms, merely because I was protesting?
No. Even if an employer feels that its employees who protest are at a “higher risk” for developing or causing infection, under current EEOC guidance an employer cannot force such workers who test negative and are otherwise asymptomatic to stay home. The only way an employer can keep a virus-free “high risk” employee home is if the employer can establish after an individualized assessment that the risk of “substantial harm” -- a very high bar -- cannot be reduced or eliminated by a reasonable accommodation, such as teleworking, giving the employee a staggered shift, or a workspace in a room separate from other employees.
Employers who treat employees who protest differently risk discriminating against them under New York Labor Law § 201-d, which stipulates that employers may not discriminate against employees for engaging in “political activities” or “recreational activities” outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal.
What leave options are available to me while I await my Covid-19 test results? If I test positive?
Under the Families First Coronavirus Response Act (“FFCRA”), many employees can take up to 10 days of paid leave while experiencing symptoms of Covid-19 and seeking a medical diagnosis, who have been advised to self-quarantine by a healthcare provider, or who have received a self-quarantine order from the state or local government. In New York, this is not based on the statewide PAUSE, but specific to the individual, usually after a positive Covid-19 test result. Read more about federal, state, and New York City leave options on our coronavirus resource page.
Written by Law Clerk Kacie Candela
