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EEOC Updates COVID-19 Technical Assistance Guidance

With the economy reopening, on June 11, 2020, the EEOC updated its COVID-19 Technical Assistance Publication — What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws — to identify concerns that employers may face as they plan for employees to return to the workplace.

The update, presented in question-and-answer format, discusses pandemic issues such as reasonable accommodation, harassment, requesting flexibility in work arrangements, employment screening, age discrimination, caregiver/family responsibilities, and pregnancy.

Here is what you need to know.

Accommodations for Family Members

Is an employee entitled to an ADA accommodation to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

“No,” says the EEOC.

The ADA prohibits discrimination based on association with an individual with a disability. But, that protection is limited to disparate treatment or harassment. The ADA does not require an employer to accommodate an employee without a disability due to the family member’s, or anyone else’s, physiological condition.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation to protect a family member with a disability from potential COVID-19 exposure. An employer, however, may provide such flexibility if it chooses. But, an employer choosing to offer additional flexibility beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

Pandemic-Related Harassment

How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be of Asian descent?

The EEOC advises that managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Asian descent, including remarks about the coronavirus or its origins.

Employers should ensure that management understands how to recognize such harassment. Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and in person between employees at the worksite. Worksite harassment of employees may also originate with contractors, customers, clients, or with patients or their family members at health care facilities, assisted living facilities, and nursing homes. Managers should know their legal obligations. And, employers should instruct them to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination.

Employers may choose to send a reminder to the entire workforce, noting Title VII’s prohibitions against harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses employee harassment to report it to management. Employers may remind employees that harassment can result in disciplinary action up to and including termination.

What should an employer do if it learns that an employee who is teleworking due to the pandemic is sending harassing e-mails to another worker?

According to the EEOC, the employer should take the same actions that it would take if the employee were in the workplace. Employees may not harass other employees through, for example, e-mails, calls, or platforms for video or chat communication and collaboration.

Inviting Employees to Request Flexibility in Work Arrangements

As a best practice, and before some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?

According to the EEOC, the answer is “yes.”

The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact -- if they wish -- to request an accommodation for a disability that they may need when they return to the workplace, even if no date has been announced for their return. If it receives such requests in advance, the employer may begin the interactive process. An employer may include in such a notice the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider, case-by-case, any flexible work arrangement requests from employees who have those or other medical conditions.

An employer also may send a general notice to all employees who are designated to return to the workplace, noting that the employer is willing to consider requests for accommodation or flexibility on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request. For example, if the office or person to contact is different for employees with disabilities or pregnant workers than it is for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020, CDC guidance that emphasizes the importance of employers providing accommodations or flexibility to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the applicable federal anti-discrimination laws, for instance, the laws regarding accommodations due to a medical condition, a religious belief, or pregnancy.

Responding to Requests for Alternative Screening Methods

What should an employer do if, due to a medical condition, an employee entering the worksite requests an alternative screening method?

Says the EEOC, this is a request for reasonable accommodation, and an employer should proceed as it would for any other accommodation request under the ADA or the Rehabilitation Act. If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request and then determine if that accommodation or an alternative effective accommodation can be provided absent undue hardship.

Similarly, if an employee requests an alternative method of screening as a religious accommodation, the employer should determine if an accommodation is available under Title VII.

Potential Age Discrimination

The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus. Thus, it has encouraged employers to offer maximum flexibility to this group. Do employees age 65 and over have protections under federal employment discrimination laws?

The Age Discrimination in Employment Act prohibits employment discrimination against individuals age 40 and older. Under the ADEA, an employer may not exclude an individual from the workplace because he or she is 65 or older, even if the employer acts for benevolent reasons, such as protecting the employee against COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. But, employers may provide flexibility to those workers, even if younger workers ages 40-64 are treated less favorably based on age in comparison.

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed to their age.

Caregivers/Family Responsibilities

If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations?

Employers may provide any flexibility as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, employers may not treat female employees more favorably than they treat male employees based on a gender-based assumption about who may have childcare responsibilities.

Pregnancy

Due to the pandemic, may an employer exclude an employee from the workplace because she is pregnant?

No. The EEOC admonishes that sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer may not single out workers based on pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

Is there a right to accommodation based on pregnancy during the pandemic?

Two federal employment discrimination laws may trigger a duty to accommodate pregnant employees.

First, pregnancy-related medical conditions may be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for a reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Second, Title VII as amended by the Pregnancy Discrimination Act, requires that employers treat women affected by pregnancy, childbirth, and related medical conditions the same as others who are similar in their ability or inability to work. Thus, a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments and leave to the extent provided for other employees who are similar in their ability or inability to work. To avoid Title VII disparate treatment claims, employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests.

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