5 tips to avoid free speech issues amid COVID

Employees are coming back to work and there’s a lot to talk about: COVID-19, a polarized political climate, public health restrictions, vaccinations, among other topics. Even though the First Amendment may not protect speech in a privately owned business, other federal, state and local laws could be implicated. Employers should educate themselves and update their employment policies for the post-COVID workplace so they will be prepared to deal with potential speech issues.

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 Here are five tips to guide that process.

 1. Don’t permit broad disclosure of an employee’s COVID-19 diagnosis.

The Americans with Disabilities Act applies to employers with 15 or more employees and requires employers to treat medical information voluntarily disclosed by an employee as a confidential medical record. With regard to COVID-19, the Equal Employment Opportunity Commission elaborated that employers should not permit broad disclosure of a specific employee’s medical condition and that confidentiality of an individual’s diagnoses with COVID-19 is vital.

Similarly, if an employee is teleworking because they have COVID-19, an employer may let other employees know that that employee is teleworking, but should not disclose that the reason is because that employee has COVID-19. In addition to the ADA, some states have privacy laws that may offer additional protection. The basic legal principle that employers should follow is not to reveal an employee’s medical condition unless there is a legitimate business reason to do so.

Further, employers should consider updating their personnel policies to reflect and/or emphasize an overall commitment to keeping private medical information, diagnoses and conditions personal and confidential.

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2. Avoid asking whether an employee’s family members have been diagnosed with COVID-19 or are experiencing related symptoms.

The Genetic Information Nondiscrimination Act applies to employers with 15 or more employees and prohibits employers from asking employees medical questions about their family members. GINA, however, does not prohibit an employer from asking employees whether they have come in contact with someone diagnosed with COVID-19. By broadening the question in this manner, employers may gain a better understanding of the potential risk of that employee’s exposure, while simultaneously mitigating the risk of asking questions prohibited by GINA.

See also: Can HR ban politically focused face masks?

3. Take care to reinforce a no-tolerance discrimination and harassment policy.

Since the beginning of the pandemic, there has been increased xenophobia, harassment and violence against people of Asian descent. In fact, experts have reported that between 2019-2020, anti-Asian hate crimes rose by nearly 150% in 16 of the largest cities in the U.S. Many of these incidents happened in the workplace.

Employees have the legal right to protection from such discrimination and harassment, and likewise, employers have the duty to protect their employees from illegal harassment based on race or national origin.

The Asian Pacific American Labor Alliance has recommended that employers take a firm stance against outbreak-related jokes or harassment based on race or national origin and provide trainings to teach employees what to do when they witness racial discrimination, to reaffirm the dignity of Asian American workers and to reiterate that people of Asian descent are not more likely to get or spread COVID-19.

Employers need to be careful, and if they become aware of anything in the workplace that seems to be targeting members of a specific protected class, including people of Asian descent, they should take proper action, including reiterating and reviewing anti-discrimination, harassment and retaliation policies, conducting an investigation and taking appropriate disciplinary action where necessary.

The Centers for Disease Control and Prevention emphasizes that people living in the U.S. who have not recently been in an area where there is an ongoing spread of COVID-19 or have not been in contact with someone who has a confirmed or suspected case of the virus are not at greater risk of spreading COVID-19 than other Americans. Additionally, “no single person or group of people are more likely than others to spread COVID-19.” Accordingly, xenophobic sentiments in the workplace should be dispelled.

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4. Politics aside, focus on disciplining only speech that is disruptive or violative of employer policies.

The First Amendment guarantees a right to “free speech,” but that doesn’t apply to private employers. In addition, political speech is not protected under federal law. Some states do protect employees from being disciplined based on political affiliation as long as that affiliation does not put the employer or its brand at risk. Accordingly, as a best practice, employers should treat political speech like any other speech in the workplace and focus on disciplining only speech that is disruptive or violative of employer policies. Examples of disruptive speech may include things like: promoting or supporting racial discrimination, antagonism towards immigrants, profane or malicious speech or communications, sexist or sexual speech or communications, or threatening speech or communications.

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.

As employees come back to work, employers should consider reminding employees of the employer’s policies on harassment-free workplace and instruct that kindness, civility and respect in any conversation is expected.

5. Do not retaliate against any employee alleging a violation of a COVID-19 public health order.

Philadelphia was the first city in the United States to enact a law protecting employees in connection with COVID-19 public health orders. Under the city’s Essential Workers Protection Act, once an employee notifies the employer of a suspected COVID-19 public health order violation, the employer cannot respond by disciplining the employee, terminating the employee, mandating that the employee work despite the health concern, withdraw benefits previously given to the employee or take any adverse employment action of any kind toward the employee.

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By contrast, employees cannot refuse to work when the company provides a reasonable alternative work assignment that does not expose the employee to the unsafe condition, or upon inspection by the Philadelphia or Pennsylvania Department of Health, the business proves it is compliant with all public health orders addressing safe workplace practices.

Even 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 the company is compliant with all applicable COVID-19 public health orders.

Employers should review applicable COVID-19 public health orders and update their policies if they have not done so already, to include things like:

  • Common areas and frequently touched surfaces are being cleaned frequently, if not daily.
  • Hand sanitizer is provided throughout the workplace.
  • Posters are displayed with reminders on how to prevent the spread of germs.
  • Workspace layouts and seating arrangements are revised to allow for social distancing.
  • Meeting rooms, break rooms and other communal areas have reduced seating and capacity limits.
  • Social distancing practices are maintained in the workplace.
  • Employees are reminded to wash their hands frequently or use hand sanitizer.
  • All employees should be required to wear a mask that covers both nose and mouth.

Accordingly, even though the First Amendment may not protect speech in a privately owned business, other federal, state and local laws may be implicated. Employers should 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.

Leah Altman
Leah Altman is a partner at Vaughan Baio & Partners' Philadelphia office where she maintains a general liability practice. She counsels and defends Fortune 500 companies, privately held companies and individuals in a wide variety of civil litigation. She can be reached at [email protected].