A Summary of the EEOC’s New COVID-19 Guidance

The EEOC has once again updated its COVID-19 guidance. Here is a quick summary of the new questions and responses:

D.13. 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?

No. The Americans with Disabilities Act (ADA) does not require employers to make reasonable accommodations for employees’ family members who have disabilities.

This does not mean that an employer cannot voluntarily make such accommodations, but it can be important to treat employees consistently. For example, if you allow an employee to work remotely because her spouse has a respiratory condition, you may then want to consider whether a similarly situated employee who is caring for his elderly parents should be given the same accommodation.

E.3.  How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian?

E.4.  An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker.  What actions should the employer take?

The pandemic has not changed harassment laws and how they apply to the workplace. As to the first question, you may want to consider investigating the harassing conduct promptly and taking appropriate action designed to end any harassment. As to the second question, you will want to treat such harassment the same as if it occurred in the workplace.

G.6.  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?

Yes, and, of course, the EEOC encourages this approach. It is a best practice to send such information to all employees, and you may also include a list of the medical conditions that place people at higher risk of serious illness if they contract COVID-19. Employers may also wish to provide the contact information for the specific person who should be contacted for such requests. (And, of course, it is also a best practice to make sure that person is properly trained to respond to such requests, including the applicable laws and confidentiality requirements.)

G.7.  What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?

This should be treated as a request for a reasonable accommodation under the ADA. You may want to engage in the interactive process and may request medical documentation as needed. Under the ADA and pursuant to EEOC guidance, if the accommodation is not an undue hardship, it should be granted. (Note: an employer should also consider a request for an accommodation as a result of religious beliefs and should analyze that request as it would any other request for a religious accommodation.)

H.1.  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 over have protections under the federal employment discrimination laws?

The Age Discrimination in Employment Act (ADEA) protects employees over the age of 40 from discrimination based on age. This means that employers should not exclude employees from a physical return to work because, for example, they are over 65.

Note that the ADEA does not require employers to offer a reasonable accommodation based on age, but employers may have to offer a reasonable accommodation under the ADA for a disability that may be caused by aging.

I.1.  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?

Yes. Under Title VII, employers cannot treat mothers more favorably than fathers (or vice versa).

J.1.  Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?

No, and this is true even if the employer’s motivation is to protect the mother and child. (This principle applies to all employer actions, not just COVID-19 related actions.)

J.2.  Is there a right to accommodation based on pregnancy during the pandemic?

Likely, yes. First, if the employee has a pregnancy-related disability, the ADA’s right to reasonable accommodation applies.

Second, the U.S. Supreme Court has made clear that the Pregnancy Discrimination Act requires that pregnant mothers be offered the same accommodations granted to other employees who are similar in their ability or inability to work. Thus, for example, if an employer grants light duty work to employees with work injuries, it would have to consider light duty work for a pregnant mother who requests it.

A link to the full new EEOC guidance can be found here.

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