In her article for HR Executive, “5 Tips to avoid free speech issues amid COVID,”
Leah E. Altman points out that employees are beginning to return to a very different workplace, where there’s a lot to talk about – “…COVID-19, a polarized political climate, public health restrictions, vaccinations, among other topics.” She suggests that employers update their employment policies to reflect the challenges of the post-COVID workplace so that they will be prepared to deal with potential speech issues.
Leah offers five steps to guide employers through the process:
— Don’t permit broad disclosure of an employee’s COVID-19 diagnosis. Leah discusses requirements for employers under both the Americans with Disabilities Act and pursuant to guidance from the Equal Employment Opportunity Commission. Both require employees’ medical and health information to be held in the strictest confidence.
— Avoid asking whether an employee’s family members have been diagnosed with COVID-19 or are experiencing related symptoms. The Genetic Information Nondiscrimination Act, which applies to employers with 15 or more employees, prohibits questions specifically about family members. Leah explains that by broadening the question, employers may ask if employees have come in contact with someone diagnosed with the virus.
— Take care to reinforce a no-tolerance discrimination and harassment policy. Leah points out that, “[s]ince the beginning of the pandemic, there has been increased xenophobia, harassment and violence against people of Asian descent…and that “employers have the duty to protect their employees from illegal harassment based on race or national origin.”
— Politics aside, focus on disciplining only speech that is disruptive or violative of employer policies. While the First Amendment guarantees a right to “free speech,” that doesn’t apply to private employers. Leah counsels that the “…overall question that should be asked is whether the speech is causing disruption, or is offensive, or whether it contradicts or undermines the employer’s brand.”
— Do not retaliate against any employee alleging a violation of a COVID-19 public health order. While Philadelphia was the first city to enact a law protecting employees in connection with COVID-19, not all cities or states have enacted such legislation. Leah suggests that “…[e]ven if your state does not currently have any anti-retaliation laws in effect (yet), best practice for employers is not to take any adverse employment actions where an employee reports a believed violation of a COVID-19 public health order, and instead, make sure that the company is compliant with all applicable COVID-19 public health orders.”
The takeaway for employers is to “…update their policies to reflect appropriate anti-harassment policies, confidentiality of medical information, disciplinary action against disruptive speech and an emphasis on kindness and civility.
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