Q: “I have an essential business but all office employees have been home since March 10th. I want to bring people back to work slowly when it is safe to do so. I’d like to start with those that are willing, younger and healthy then gradually move to older employees and finally to those at higher risk. I am also putting pregnant employees in the high-risk category. How do I have an honest conversation with people about their health or medical conditions without violating any applicable privacy laws?”

That’s a very good question. You are not the only employer struggling with how to protect the health and safety of your employees while at the same time respecting their legal right to privacy. Unfortunately, you can’t stage your employees’ return to work in that fashion. The American with Disabilities Act (ADA) raises these restrictions (interpreted by the EEOC) and prohibits “disability-related inquiries” subject to certain exceptions. (HIPAA generally does not apply to employers, although some employers may be subject to HIPAA if they have a self-insured health plan, or are otherwise a covered entity). Although EEOC guidance suggests that, in some cases, a pandemic may create a situation whereby employers can ask employees whether they are at a higher risk as a result of a preexisting condition, it has not yet clarified whether employers can do so during the current COVID-19 pandemic. There are substantial risks to categorizing your workforce by age and disability and taking employment actions based on such categories. Your employment actions may constitute prohibited discrimination. Accordingly, and in the absence of authorization by the EEOC to make inquiries about an employee’s underlying conditions, we are recommending against making these inquiries. See our latest post on the EEOC guidance on this legal issue.

That said, you can ask your employees to volunteer to begin working from the worksite based on their comfort level. You can also inform employees about who the CDC says are at a higher risk and encourage them to voluntarily disclose if they are at higher risk so that they can be provided accommodations to reduce their exposure. If there are too many or too few volunteers, individuals must be selected to return to work based on neutral criteria. Accommodations could involve working from home, reassignment, or staggering attendance in the office to minimize exposure.  Basically, give your employees all the information they need to evaluate their own risk factors. Make sure they understand that they don’t have to tell you anything but, at the same time, impress upon them the fact that you are trying to make the work environment as safe as possible for everyone.