On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) published updated information for employers navigating the various requirements regarding employee health screening, reasonable accommodations, discrimination and other issues during this unprecedented pandemic.
The guidance is included in a technical Q&A on the EEOC's website titled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws.”
Recent updates include the following:
- The Americans with Disabilities Act (ADA) does not require employers to accommodate an employee to avoid exposing the employee’s family member with an underlying health condition that carries a higher risk of severe illness from COVID-19.
- Prior to announcing a return-to-work date, employers may provide information to ALL employees advising them that, if they wish, they may request a reasonable accommodation upon return to the workplace. If the employer has designated a certain group of employees to return to the workplace, then the notice can be limited to those employees designated to return.
- Employers should treat an employee’s request for an alternative method of screening due to a medical condition as a reasonable accommodation request.
Discrimination & Harassment
- Title VII requires that employers remain vigilant in preventing and resolving pandemic-related harassment against employees who are Asian or are perceived to be Asian. This includes ensuring that management employees are properly trained on their legal obligations.
- Employers should take the same actions they would take in the workplace regarding harassment that occurs via email, phone or other platforms while employees are teleworking.
In addition, the EEOC added specific guidance regarding employers who are over the age of 65, are caregivers or are pregnant.
- Although the Centers for Disease Control and Prevention (CDC) has stated that individuals over the age of 65 are at a higher risk for severe cases of COVID-19, the Age Discrimination in Employment Act does not require employers to provide reasonable accommodations to employees who are 65 and older.
- The ADA only requires that reasonable accommodations be provided to employees over 65 if they have a medical condition or other disability that puts them at higher risk for severe illness.
- Nothing prohibits employers from choosing to provide accommodations to employees whose age puts them at higher risk.
- Employers who provide scheduling flexibility or other consideration to employees with school-aged children due to school closures cannot treat employees differently because of their sex. This includes treating women favorably based on gender-based assumptions regarding caregiving responsibilities.
- Employers cannot involuntarily exclude pregnant employees from the workplace.
- Certain pregnancy-related medical conditions may trigger a pregnant employee’s right to a reasonable accommodation under the ADA.
- Employees affected by pregnancy, childbirth or related conditions must be treated the same as others who are similar in their ability or inability to work. This may entitle a pregnant employee to certain flexibility, including telework, to the extent provided to others.
The information above provides general guidance under federal equal employment opportunity laws. State and local laws may provide greater employee protections than federal law. Employers with questions regarding requests for accommodation, discrimination or return-to-work plans should contact experienced employment counsel.