Updated EEOC Guidance on Covid-19, the ADA and Other EEO Laws: What Employers Need to Know - Update #2

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The United States Equal Employment Opportunity commission (EEOC) updated its Technical Assistance Questions and Answers about COVID-19, the American with Disabilities Act (ADA) and other EEO laws on Thursday June 11 and again on Wednesday June 17, 2020.

The latest EEOC updates focus on a number of important subjects for employers including COVID-19 testing, responding to various requests for accommodations, offering flexible working arrangements, and steps to take to avoid discrimination claims based on age, sex and pregnancy in the context of reopening the employer’s business.

Employers May Not Require Employees to Undergo Antibody Testing

In light of CDC’s guidance that antibody test results should not be used to make decisions about returning persons to the workplace, the EEOC advised employers that an antibody test does not meet the ADA’s standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is prohibited under the ADA. Importantly, this change only applies to antibody testing and not testing for presence of the actual virus which is still allowed under certain circumstances.

The EEOC also stated that an employee entering the worksite and requesting an alternative method of screening due to a medical condition is making a request for reasonable accommodation under the ADA or Rehabilitation Act. Thus, if the requested screening alternative is easy to provide and inexpensive, the employer may choose to make it available. If the employee’s disability is not obvious or already known by the employer, the employer may ask the employee for information to establish that the condition is a disability and, if necessary, may request medical documentation of the disability and needed accommodation.

The ADA Does Not Require Employers to Consider Employee Requests for Accommodation to Avoid Exposure to Family Member with Disability

Significantly, the new EEOC guidance clearly states that while employers must make reasonable accommodations to employees with respect to the employee’s disabilities, the ADA does not require any accommodation in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19. The EEOC clarified that while the ADA does not require employers to accommodate employees based on the disability-related needs of a non-employee with whom the employee is associated, employers are free to provide flexibilities, but should be careful not to engage in disparate treatment on a protected EEO basis when providing additional flexibilities beyond what the law requires.

Employers May Not Involuntarily Exclude Older Workers and Pregnant Workers from the Workplace

The Age Discrimination in Employment Act (ADEA) prohibits an employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acts for reasons such as protecting the employee due to higher risk of severe illness from COVID-19. While the ADEA does not include a right to reasonable accommodation for older workers due to age, employers are free to provide flexibility to workers age 65 and older even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. The EEOC noted that workers age 65 and older also may have medical conditions that bring them under the protection of the ADA, and as such may request reasonable accommodation for their disability as opposed to their age.

Similarly, the EEOC advised employers that they may not exclude an employee from the workplace involuntarily due to pregnancy. Even if motivated by benevolent concern due to the pandemic, an employer is not permitted to single out employees on the basis of pregnancy for adverse employment actions including involuntary leave, layoff, or furlough.

However, federal employment discrimination laws may trigger accommodation for employees based on pregnancy. Even though pregnancy itself is not an ADA disability, pregnancy-related medical conditions may themselves be disabilities under the ADA. Employers must consider requests for reasonable accommodation due to pregnancy-related medical conditions under the usual ADA rules. The EEOC reminded employers that Title VII requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability or 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.

Employers May Invite Employees to Request Flexibility in Work Arrangements in Advance of Employees Returning to Work

Employers are permitted to make information available in advance to all employees about who to contact to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. If requests are received in advance, the employer may begin a discussion with the employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. Regardless of the approach, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply.

Employers May Not Treat Employees Differently Based on Sex or other Protected Characteristics When Offering Flexible Working Arrangements

The EEOC reminded employers that provide telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic that they may not treat employees differently based on sex or other EEO-protected characteristics. The EEOC provided as an example that female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

Employers Should be Watchful for Anti-Asian Discrimination and Harassment in the Workplace During the Pandemic, Including Through Electronic Means While Teleworking

Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Asian national origin, including remarks about the coronavirus or its origins. Management should understand that harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite. An employer that learns that an employee who is teleworking is sending harassing emails to another worker should take the same actions it would take if the employee was in the workplace. Employers may choose to send a reminder to the entire workforce noting prohibition on harassment, reminding employees that harassment will result in disciplinary action, and inviting anyone who experiences or witnesses workplace harassment to report it to management.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days. As always, we encourage employers to consult with counsel with their specific questions and concerns related to COVID-19.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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