What happens when an employee reports COVID-19 symptoms or close contact with another person who has tested positive for COVID-19? Upon receipt of such information, employers must be mindful of their dual obligations: (1) to protect the confidentiality of the employee’s sensitive medical information, and (2) to take reasonable measures to protect all employees’ safety and care, including making careful disclosures. While these obligations may exist in some tension, employers can properly navigate both duties. Here’s how.
On June 15, 2020—the 5th anniversary of the landmark Obergefell v. Hodges decision recognizing a constitutionally-protected right of same-sex marriage — the U.S. Supreme Court expanded sex-based discrimination to encompass sexual orientation and gender identity for purposes of employment discrimination protection. In Bostock v. Clayton County, the Court determined that when an employer fires an employee because of gender identity or sexual orientation, the employer is effectively firing the person for traits and qualities that would not have been an issue if they were members of the opposite sex. Thus, the Court held in a 6-3 ruling, discrimination on the basis of gender identity or sexual orientation is discrimination “because of sex” and therefore presents a valid employment claim under Title VII of the Civil Rights Act. This article summarizes the Court's majority and dissenting opinions, provides several observations, and then discusses Bostock's application such as to religious employers and other nonprofit organizations.
Are your employees coming back to in-person work yet? As states shift forward into new phases that allow nonprofit and other employees to come back to worksites, employers face a plethora of warranted policy changes. High on the list should be to develop and implement a Workplace Health and Cleanliness Operations Policy. In addition, employers may address continued remote work options, such as through a new or updated Remote Work Policy. These important changes should be reflected in modified employee handbooks, at least in summary versions, which should also include policies covering new COVID-19-related Emergency Paid Sick Leave and Expanded Family and Medical Leave.