Walking the fine line between worker safety, bias claims

Public health experts are laying out a medically wise blueprint for repopulating the workplace. Among the recommendations is delaying the return of “vulnerable populations,” which include all older workers and anyone with an “underlying medical condition.” You can anticipate calls for establishing a hiring preference for workers who can document coronavirus antibodies and refusing shifts to anybody with a fever or a cough.

But that pragmatic advice about those return-to-work situations is likely illegally discriminatory under current law. Your best intentions about keeping your workers safe can lead to major litigation headaches in the months to come.

Who knows what statutory changes the future brings, but the current law was set decades ago in a case involving Johnson Controls, a company whose employees worked with a chemical known to cause birth defects. So, the company established a rule preventing pregnant women and women of childbearing years from working around the chemical.

Despite the employer’s protective goal, the mandatory rule was found to constitute discrimination on the basis of sex and pregnancy. Thus, in some very simple and subtle ways, you must make sure your rules follow the law as well as your best intentions.

Review helpful new EEOC guidelines