Employment Law Updates

Yesterday, March 23, Governor Ralph Northam issued Executive Order 53 requiring the closing of certain businesses. The order can be found online at

This is the first in a series of our blogs about coronavirus issues.

We have received several inquiries about whether employers may take employees’ temperatures to determine if they have the coronavirus. The Americans with Disabilities Act (ADA) prohibits employers from making medical inquiries of employees or requiring medical examinations unless they are job related and consistent with business necessity. The EEOC has now issued guidance on this subject.

Classifying a worker as an “independent contractor” rather than an employee is attractive to employers for several reasons. Whereas employees have taxes withheld from their paychecks and have legal protections such as the minimum wage law, unemployment benefits, and workers’ compensation insurance, independent contractors are considered to be self-employed. As such, independent contractors are responsible for paying their own taxes and benefits such as health insurance expenses and for setting their own work schedules. The availability of workers compensation benefits and unemployment insurance is also limited when a worker is classified as an independent contractor. Virginia lawmakers have passed legislation in an attempt to stop employer misclassification of employees as independent contractors.

Workplace harassment is not a new phenomenon. However, its place in the spotlight over the last several years and in the wake of the #metoo movement has led employers to re-examine their harassment policies and training efforts. An EEOC task force concluded in a 2016 report that in most cases, anti-harassment training isn’t working. Why? Most harassment training focuses on technical compliance with the law, claim prevention and defense tactics, using outlandish or extreme examples that are not relatable and can be abstract, boring and irrelevant to employees. Current research indicates that employers’ focus is better placed on prevention and creating a culture of mutual respect and tolerance that is conducive to disclosure of inappropriate behaviors.

The Americans with Disabilities Act (ADA) imposes limits on requesting medical information from a job applicant. Before extending a job offer, it is unlawful for an employer to (1) ask an applicant medical questions, or whether he/she is disabled, or about the nature or severity of a disability; or (2) to require the applicant to take a medical exam before making a job offer. You can ask the applicant questions about ability to perform job-related functions, as long as the questions are not phrased in terms of a disability.

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