Earlier this year, the U.S. Equal Employment Opportunity Commission published compliance guidance to employers regarding the application of various Federal EEO laws to workplace issues related to COVID-19. This Technical Assistance Publication, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” has been updated several times by the EEOC to address new questions that have arisen since the pandemic began. On June 11 and 17, 2020, the EEOC again updated and expanded its Technical Assistance Publication, to answer the following questions regarding topics such as return to work and flexible work arrangements, pandemic-related harassment, age and pregnancy protections, and COVID-19 testing.
Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?
Answer: No. The EEOC states that the Americans with Disabilities Act (ADA) “does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.” For example, the employer is not required to allow a non-disabled employee to telework in order to protect a disabled family member from potential COVID-19 exposure.
How may employers respond to pandemic-related harassment, in particular against employees who are or perceived to be Asian?
Answer: The EEOC states in part that “managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or Asian national origin, including about the coronavirus or its origins.” The EEOC further states that managers should recognize that unlawful harassment under Title VII “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.” Managers should “know their legal obligations and be instructed to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination.”
An employer learns that an employee who is teleworking due to the pandemic is sending harassment emails to another worker. What actions should the employer take?
Answer: The EEOC states that employers “should take the same action it would take if the employee was in the workplace. Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communications and collaboration.”
As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?
Answer: Yes. The EEOC states in part that employers may make information available to all employees about who to contact to request accommodation for a disability, if needed, upon return to the workplace. Upon receipt of such a request, the employer may begin the interactive process with the employee to discuss the accommodation request. Employers may also send a general notice to all employees returning to the workplace regarding the employer’s willingness to consider requests for work “flexibility arrangements” on an individualized basis. (See below).
What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?
Answer: The EEOC states that this constitutes a request for accommodation, and the employer should respond “as it would for any other request for accommodation under the ADA or the Rehabilitation Act.” If the employee’s disability is not already known or obvious, the employer may request information to establish that the employee’s condition is a disability and what specific limitations require an accommodation. If the employee requests an alternative method of screening as a religious accommodation, “the employer should determine if the accommodation is available under Title VII.”
The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group. Do employees age 65 and older have protections under the federal employment discrimination laws?
Answer: The EEOC states that the Age Discrimination in Employment Act (ADEA) prohibits covered employers from “involuntarily excluding an individual from the workplace based on his or her being 65 or older.” Even though 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 or older” – even if this results in younger workers being treated less favorably based on age.
If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations?
Answer: The EEOC states that employers “may provide flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics.”
Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?
Answer. No. The EEOC states that under Title VII, an employer cannot “single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.”
Is there a right of accommodation based on pregnancy during the pandemic?
Answer: The EEOC states that a duty to accommodate a pregnant worker may be triggered under the ADA or Title VII (as amended by the Pregnancy Discrimination Act (PDA)). If an employee requests accommodation for a pregnancy-related medical condition which may constitute a disability, the employer must consider it “under the usual ADA rules.” Also, a pregnant worker may be entitled to accommodation under the PDA, including job modifications, telework arrangements, changes to work schedules or assignments, and leave – to the extent that such accommodations are provided by the employer to “other employees who are similar in their ability or inability to work.”
CDC said in its Interim Guidelines that antibody test results should not be used to make decisions about returning persons to the workplace. In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?
Answer: No. The EEOC states that an antibody test constitutes a medical examination under the ADA. “In light of CDC’s Interim Guidelines that antibody test results should not be used to make decisions about returning persons to the workplace, an antibody test at this time does not meet the ADA’s job related and consistent with business necessity standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.” However, the EEOC also recognizes that an antibody test is different from a “viral test” to determine if someone has an active case of COVID-19. The EEOC states that COVID-19 viral tests are permissible under the ADA.
The EEOC’s Technical Assistance Publication is available on the EEOC’s website at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Employers should monitor this publication for further updates on a regular basis, as additional issues on this subject are addressed.