Last week, the U.S. Equal Employment Opportunity Commission (EEOC) released additional information within its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” guidance. In March 2020, the EEOC began periodically releasing frequently asked questions and corresponding answers about the intersection of the laws it enforces and COVID-19. As the enforcer of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination in Employment Act (ADEA) and the Genetic Information Nondiscrimination Act of 2008 (GINA), the guidance released by the EEOC is particularly instrumental to understanding how these laws will be interpreted in the age of COVID-19. Below are the highlights from the updated guidance published on June 11, 2020.

Age

In what may be one of the most important and highly-anticipated pieces of guidance released this week, the EEOC confirms that employers may not involuntarily exclude older workers from the workplace based on their being age 65 or older, even if such action is taken to protect these employees. While the Centers for Disease Control and Prevention (CDC) has explained that individuals age 65 and over are at heightened risk for a severe case of COVID-19 if they contract it, the EEOC reiterates the ADEA’s prohibition on employment discrimination against individuals age 40 and older prohibits covered employers from taking such action. The EEOC further notes that, unlike the right to reasonable accommodation for a disability under the ADA, there is no right to reasonable accommodation due to age under the ADEA. Still, employers are welcome to provide flexibility to workers age 65 and older, which is not prohibited under the ADEA, “even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.” Importantly, employees age 65 and older may have medical conditions that will allow them to seek reasonable accommodations under the ADA for disability as opposed to their age.

Reasonable Accommodation

The EEOC’s new guidance makes clear that employees will not be entitled to accommodations under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19. For example, having a family member at home does not entitle an employee without a disability to a telework accommodation for purposes of protecting that family member. Employers are, of course, permitted to provide these flexible arrangements, so long as they do so in a manner that does not constitute disparate treatment on a protected EEO basis.

As it relates to return-to-work planning, the EEOC confirms that employers are welcome to contact their workforce in advance of returning to work to make information available for any employees that may need to request an accommodation for their return to the workplace. This inquiry may be conducted well in advance—even if there is no official return-to-work date yet established. Advance requests will allow employers to begin the interactive process. Employers may opt to provide a list to all employees informing them of the CDC-listed medical conditions that put individuals at higher risk for serious illness should they contract COVID-19. A notice of this nature should also include instructions as to who to contact about potential accommodations, and an explanation that requests for accommodation will be considered on a case-by-case basis.

Separately, the EEOC also stated that if, due to a medical condition or religious belief, an employee requests a different employee screening measure than the type performed by the employer, employers should engage in the interactive process and consider such requests as they would any other request for a reasonable accommodation under the ADA or Title VII.

Pandemic-Related Harassment Due to National Origin, Race or Other Protected Characteristics

Managers are urged to be aware of derogatory comments aimed at employees of Chinese or other Asian national origins (as well as those employees perceived to be of same). The EEOC encourages employers to send a reminder to their entire workforce to reiterate anti-harassment policies and the potential consequences for violating such policies. The EEOC further notes that if an employer becomes aware of harassing behavior taking place by employees who are teleworking, the employer response should be the same as if the employees were in the workplace.

Prior to its June 11 release of additional question and answer pairings, the EEOC had provided additional sets of guidance on March 17, March 18, April 9, April 17, April 23, May 5 and May 7, 2020. For more information about that guidance, see Elisabeth Koloup Hall’s blog post of April 28, 2020.

The full text of the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” can be found here.

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