On June 17, 2020, the Equal Employment Opportunity Commission (the “EEOC”) issued supplemental guidance warning employers about potential violations of federal discrimination laws including the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (the ADA”), and Title VII. Among other things, the EEOC’s guidance discusses how potential issues may arise in the workplace as a result of COVID-19 and interact with various federal discrimination laws. Below we discuss what employers need to know about this agency’s latest guidance on dealing with COVID-19 in the workplace.
Age-Related Discriminatory Practices
While the EEOC’s guidance does acknowledge that the Centers for Disease Control (the “CDC”) and other public health authorities have identified that people age 65 and over are at a higher risk to contract a severe case of COVID-19 if the virus is contracted, employers are still subject to the ADEA. The ADEA bans employers from discriminating against employees who are 40 and older and employers are prohibited from involuntarily excluding an employee from the workplace based on their age. Despite the fact that employers may be trying to keep older employees out of the office to protect them against contracting COVID-19, employers may still violate the ADEA by treating older workers less favorably based on age.
The EEOC’s guidance also discusses the concept of providing older workers with flexibility when returning to the workplace. Unlike the ADA, the ADEA does not provide older workers with a right to a reasonable accommodation due to age. However, employers are permitted under federal law to provide workers age 65 and older with flexibility even if that does result in treating workers aged 40 to 64 from being treated less favorable based on age in comparison. Employers should ensure that when providing this that they consistently provide that flexibility to all employees age 65 and older.
The guidance further addresses that employees age 65 and older may also have medical conditions requiring protection under the ADA. Employers must keep that in mind if an employee requests a reasonable accommodation for their disability or medical condition as opposed to their age. Employers must treat the employee as any other employee requesting a reasonable accommodation.
Pandemic-Related Harassment or Discrimination of Asian Employees
Employers should instruct their managers to be alert to any harassing remarks, including those that are related to COVID-19, aimed at workers who may be perceived to be of an Asian national origin. While harassment can take place in the workplace, it can also occur while employees are working remotely. Employers should take the same actions as if the employees were working in the workplace and should consider reminding employees of their company’s process for reporting an incident and prohibitions and policies against Title VII harassment.
Guidelines on Employees Returning to Work
Under the ADA and the Rehabilitation Act, employers should inform all employees of the company’s process to request reasonable accommodations that an employee may need upon returning to the workplace. Employers should direct the employee designated to handle such inquiries to be prepared to address all inquiries consistently with the various federal employment discrimination laws.
A common request an employee may ask for is an exemption from a face covering requirement due to a disability. Employers must respond to this request as it would for any other request for an accommodation under the ADA or Rehabilitation Act. Employers are permitted to ask for additional information, including documentation, if the employee’s disability is not already known or obvious. Employers should also note that if the request is based on an employee’s religious accommodation, the employer must determine if the accommodation falls under Title VII. Employers must handle the request for an accommodation in the same manner as any other accommodation request falling under Title VII.
Protections Regarding Pregnant Employees
The EEOC also warns employers not to exclude employees from the workplace because an employee is pregnant. Sex discrimination is prohibited under Title VII, which includes discrimination based on pregnancy.
Employers should note that pregnant employees do have the right to request reasonable accommodations under Title VII or the ADA. Employers must consider a pregnant employee’s request for reasonable accommodations in the same manner as they would treat any other request for a reasonable accommodation. Title VII requires that pregnant women are to be treated in the same way as others similar in their ability or inability to work, thereby entitling them to certain job modifications such as teleworking, which is an option available to other employees.
Accommodations for Employees Who Are Caregivers
Employers providing employees with opportunities to work remotely, modify their work schedule, or any other benefit because an employee has school-aged children who require care due to school closures or distance learning as a result of the COVID-19 pandemic, must ensure they are not treating employees differently based on sex or any other EEO-protected characteristics. For instance, an employer may violate Title VII by denying a male employee’s request to work remotely in order to care for his children simply because the employee is male.
Accommodations for Employees with At-Risk Family Members
While the ADA does not cover accommodations for employees without a disability based on the disability-related needs of a family member, employers are encouraged to provide flexibilities for those employees. Employers must note that when providing such flexibility, they must be aware of whether they are engaging in disparate treatment against other employees.