As more and more businesses are opening back up under restrictions related to the COVID-19 pandemic, the EEOC has, yet again, weighed in to ensure that businesses do not discriminate against employees.  Specifically, the EEOC makes it clear that COVID-19 is not an excuse to discriminate against employees who are over the age of 65, pregnant, or otherwise protected from discrimination, even when decisions are made with the intent to protect the employees’ health.

What protections are provided to employees who are at a higher risk for COVID-19 complications due to being over the age of 65?

First, an employer may not involuntarily exclude an employee from the workplace because he/she is 65 or older, even if the purpose is to protect the employee from COVID-19.  Thus, if other employees in the same job category are being returned to work, an employer cannot exclude employees over the age of 65 simply because of a desire to protect them.  Unlike the ADA, however, which requires an employer to provide reasonable accommodations to employees with disabilities to enable them to perform their job duties, the Age Discrimination in Employment Act (“ADEA”) does not require the provision of accommodations based on age.  Employers, therefore, are not required to provide accommodations to individuals over the age of 65 that are not provided to other employees. 

An employer can choose to provide accommodations to employees over the age of 65 to minimize the risk of COVID-19.  If an employer chooses to do so, it must be done in a non-discriminatory matter.  Thus, for example, an employer could choose to allow all employees over the age of 65 in a specific job category to telework, but it could not allow female employees to telework while requiring male employees to physically come to work.  And, of course, an employee over 65 years old who has a health condition may be entitled to a reasonable accommodation based on disability.

What Protections Do Pregnant Employees Have?

Discrimination against an employee because she is pregnant is considered a form of sex discrimination.  An employer cannot prohibit a pregnant worker from entering the workplace on the basis of pregnancy, even in the age of COVID-19.  The employee, however, might be entitled to an accommodation if she requests one.  First, although pregnancy is not itself a disability, an employee who needs an accommodation because of a pregnancy-related medical condition (for example, gestational diabetes) may be entitled to an accommodation under the ADA if the employee is considered to be disabled under state or federal law.

Furthermore, Title VII, as amended by the Pregnancy Discrimination Act, requires that women affected by pregnancy, childbirth and related medical conditions must be treated the same as other employees who are similar in their ability or inability to work.  Thus, a pregnant employee may be entitled to job modifications, including telework and/or changes to assignments, to the extent these options are available to similarly situated non-pregnant employees. 

Connecticut state law also prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions, including, but not limited to, lactation.  A pregnant employee may be entitled to an accommodation such as a temporary transfer to a different position, modified work schedule or time off if such an accommodation is feasible in light of the employee’s job duties and the company’s business needs.

What should an employer do if an employee entering the worksite requests an alternative method of screening for COVID-19 symptoms?

If an employee cannot effectively participate in whatever screening methods his/her employer has established to attempt to identify employees who are exhibiting COVID-19 symptoms, the employee may be entitled to an alternative screening method under the ADA or state antidiscrimination laws.  For example, a blind employee may not be able to fill out a written form asking about symptoms and might need a different method such as reporting the lack of symptoms verbally to a supervisor.  If the request is simple, such as an alternate way to report symptoms, an employer may choose to forego a more formal interactive process and simply agree to the request.  If the need for an accommodation is not obvious, or the requested accommodation is onerous, the employer may request medical information to support the existence of a disability and/or to support the employee’s request.

Caregivers/Family Responsibilities

Be careful, when providing accommodations such as telework, modified schedules or other benefits to parents with school-age children coping with school closures or distance learning requirements, that those benefits are offered equally regardless of the gender of the employee. 

Finally, do not forget that even though some employees may continue to telecommute, that does not give them a pass on workplace rules prohibiting harassment.  An employer needs to take the same actions that it would take to prevent harassment by (or against) a telecommuting employee as it would if the employee was physically working in the office.  It is advisable to remind employees of the employer’s workplace anti-harassment policies. 

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