And, remember those wellness regulations? New ones are in progress.
Yesterday the Equal Employment Opportunity Commission updated its FAQs on coronavirus and discrimination. For those who are already familiar with the federal anti-discrimination laws, most of the new material will not be a surprise. But there are a few wrinkles that might be helpful to employers who are bringing employees back to work after the shutdowns.
The following is a "Cliff's Notes" quick-and-dirty summary, but here is a link to the real thing. I'll use the EEOC's numbering so that it will be easier for you to find the full answers when you go to their web page.
D.13. If an employee's family member has a medical condition that puts the family member at risk of getting COVID-19, does the employer have to accommodate the employee?
No. There is no legal duty under the Americans with Disabilities Act for an employer to make reasonable accommodations for employees whose family members have disabilities. But you can certainly do so if you want. You'll just need to be careful to treat employees consistently.
Although the EEOC doesn't mention it, other laws could apply in these circumstances, including the Families First Coronavirus Response Act and the Family and Medical Leave Act.
E.3 and E.4. What should an employer do if it learns that employees who are Asian, or are perceived to be Asian, are being harassed? What if an employer learns that an employee is harassing a co-worker by email or other electronic means?
In either case, treat it the same way you would treat any other case of alleged workplace harassment. (Investigate, make your best determination as to what happened, and take appropriate action.) It's also not a bad idea to remind employees who are teleworking that your no-harassment policy is still in force.
"Don't be so remote, Baby. I want to reach out to you."
G.6. As employees are returning to the workplace, can the employer "invite" employees to request flexible work arrangements?
Yes! You can tell them that you offer accommodations in appropriate cases and whom to contact if they need accommodation. You can even list the conditions that make people more vulnerable to COVID-19, per the Centers for Disease Control and Prevention, and tell them to call if they have any concerns about returning to the worksite.
In larger companies, where different employees may handle disability-related accommodations, pregnancy-related accommodations, age-based accommodations, and child-care-related accommodations, the notification should include the appropriate contact for each situation.
You should also make sure that the employees handling these requests understand the relevant legal requirements, including non-discrimination and confidentiality.
G.7. Should an employer accommodate an employee who needs to be medically screened in a different way because of a medical condition?
Yes, if accommodation would not be an undue hardship. You are entitled to get the relevant medical details from the employee and request appropriate medical documentation.
Employers must also consider accommodating employees who have religious objections to the screening.
H.1. Are individuals over age 65 protected against discrimination?
Of course they are! The Age Discrimination in Employment Act applies to anyone age 40 or older, with no upper limit.
There is no entitlement to reasonable accommodation because of age. But you can choose to treat your over-65s more favorably than you treat younger employees when it comes to coronavirus accommodations -- even if the younger employees are still in the protected age group.
Keep in mind that if an older employee (or an employee of any age) has a medical condition that qualifies as a "disability" under the ADA, then the employee could be entitled to reasonable accommodation.
I.1. Are there any concerns about discrimination if an employer is flexible with its employees who have school-age children?
Generally, no. But you can't treat mothers more leniently than similarly situated fathers. That would be sex discrimination. (And, of course, you also can't discriminate on any other basis protected by law.)
J.1. Can employers tell pregnant employees that, because of the pandemic, they can't come back to work until after their babies are born?
No! Not even if your only motive is to protect mother and child.
"We'll see you in nine months. Trust me -- it's for the best."
J.2. Do pregnant workers have a right to reasonable accommodation?
Often, yes. A pregnant woman with a pregnancy-related medical condition could be entitled to reasonable accommodation under the ADA. Even in the case of a normal pregnancy, Title VII requires that the employer treat pregnant women the same way it treats non-pregnant employees who are similar in their ability or inability to work. The EEOC says,
“ This means that 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. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
NEW WELLNESS REGULATIONS ON THE WAY?
In other EEOC news, the Commission had a public meeting yesterday and voted to submit a draft Notice of Proposed Rulemaking on wellness incentives to the Office of Management and Budget.
During the Obama Administration, the EEOC issued regulations addressing whether wellness incentives violated the ADA and the Genetic Information Nondiscrimination Act. The AARP filed suit, arguing that the EEOC's regulations were invalid.
Then we had a change in administrations. In August 2017, a federal judge in the District of Columbia ruled that parts of the regulations were invalid and ordered the EEOC to issue revised regulations. Then the EEOC lost its quorum for a while, and new regulations were never issued. The EEOC rescinded the invalidated regulations in December 2018.
More background on the controversy is available here:
What is 'voluntary'? Thoughts about the AARP wellness lawsuit against the EEOC (October 2016)
AARP's wellness win against the EEOC (August 2017)
Court vacates parts of EEOC wellness rules, effective 1/1/19 (December 2017)
EEOC rescinds wellness incentive rules (December 2018)
OK, back to now. According to a summary of the new draft of proposed regulations that will be sent to the OMB, any incentives for participation or for "results" in connection with a wellness program will have to be de minimis, and employers will be prohibited from requiring employees to participate or taking adverse action against employees who refuse to participate. But there will be a "safe harbor" for incentives offered in connection with wellness programs sponsored by the employer's group health insurance carrier. In those instances, the incentives will not violate the ADA or GINA as long as they don't exceed the limits in the Health Insurance Portability and Accountability Act as amended by the Affordable Care Act.
Submission to the OMB is only the first step, so it may be a while before we see actual proposed wellness regulations.