As we previously posted, the Centers for Disease Control and Prevention (CDC) CDC recently issued guidance on reopening the workplace. In its latest update on June 11, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Frequently Asked Questions (the Guidance) to provide further guidance on returning employees to the workplace. Notably, the Guidance covers (1) the return of high-risk workers to the workplace, (2) how to properly handle COVID-19-related accommodations requests, and (3) how to appropriately respond to pandemic-related harassment. As we discussed in our last post, employers should be wary of toeing the line on the issues highlighted below, as they may become prevalent in the wave of litigation expected to arise in the wake of the pandemic.
Employers may not involuntarily exclude older or pregnant workers from the workplace
In its updated Guidance, the EEOC cautions that the Age Discrimination in Employment Act (ADEA) – which prohibits discrimination in the workplace against individuals aged 40 and older – does not permit an employer to involuntarily exclude an employee from the workplace based solely on their age, “even if the employer acted for benevolent reasons such as protecting the employee due to a higher risk of severe illness from COVID-19.” The Guidance specifically pertains to employees aged 65 years and older, who are considered by the CDC to be at a higher risk of serious illness due to COVID-19. Moreover, the EEOC has stated that employers may still provide flexible working arrangements for workers aged 65 and older, and that doing so will not be viewed as treating younger workers (ages 40 to 64) less favorably.
Additionally, under Title VII of the Civil Rights Act (Title VII), employers are prohibited from involuntarily excluding from the workplace, furloughing, or placing on leave, pregnant employees, even if the intent behind the decision is to protect the employee’s health and safety.
Required accommodations related to COVID-19
Although neither the ADEA nor the Americans with Disabilities Act (ADA) includes a right to a reasonable accommodation on the basis of age or pregnancy alone (though some state laws do), the EEOC instructs employers that medical conditions related to either of the two protected classes may make the employee eligible for such accommodations. Further, Title VII requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as other employees who are similarly able or unable to work. Along the same vein, the EEOC also notes in the Guidance that employers who provide accommodations to employees based on their caregiver status must do so uniformly, without regard to the sex of the employee.
The EEOC clearly delineates that employees who live with individuals at high risk of contracting COVID-19 are not eligible for accommodations under the ADA. However, the EEOC states that employers are free to provide accommodations – including such alternative working arrangements as job modifications, teleworking, schedule and assignment changes, and leaves of absence – to these employees if they choose, so long as they offer them to all similarly situated employees uniformly.
Finally, employees requesting an alternative screening method for COVID-19 at the workplace, due to a medical condition, should be treated as requesting a reasonable accommodation. To the extent that an employee’s disability is not already known or obvious, employers are permitted to request additional information, including medical documentation, from employees who make this request.
The EEOC recommends that as a best practice, employers should make information available in advance to all employees about whom to contact to request accommodations they may need upon returning to the workplace. Employers may begin the interactive process as soon as they receive a request, even if the employee does not have a set return-to-work date. Employees charged with engaging in this process should be well trained and prepared to handle these discussions. Employers should also be aware that they may be subject to state or local accommodations laws, in addition to the ADA.
Preventing pandemic-related harassment
The EEOC has also provided updates on how employers should respond to incidents of pandemic-related harassment, particularly as it relates to employees who are, or who are perceived to be, Asian. Specifically, the EEOC cautions employers to be on high alert for any derogatory or otherwise harassing remarks directed to these employees – especially remarks about COVID-19 or its origins. Employers must be cognizant of how to recognize this type of harassment, regardless of whether it occurs in the workplace or by electronic means, and to take the same course of action toward the alleged harasser that it would take if the employee(s) were in the workplace.
Employers should carefully review their handbooks, manuals, and policies and practices to ensure that they are in compliance with the updated Guidance in order to mitigate possible exposure to these claims and others. For additional questions, employers should contact one of the attorneys in Reed Smith’s Labor and Employment Group.