While states begin to re-open and employers slowly welcome back their employees, a flood of COVID-related discrimination, retaliation, and wage and hour claims are likely to appear. Cases of COVID-19 have seen recent spikes and concerns about lawsuits have left many employers looking for information on how to address such issues in the workplace.
The U.S. Equal Employment Opportunity Commission (EEOC) provides guidance for employers in its COVID-19 technical assistance publication. The EEOC last updated its publication on June 11, 2020, with the following need to know topics and more:
High Risk Employees
Employers concerned for employees with medical conditions that would place them at a “higher risk for severe illness” if they get COVID-19, are not mandated by the ADA to take action “if the employee does not request a reasonable accommodation.” The ADA does not allow, however, the employer to exclude the employee because of a medical condition identified by the CDC as “potentially placing him at ‘higher risk for severe illness’ if he gets COVID-19.” Excluding the high-risk employee is only allowed if the disability poses a “direct threat to his health that cannot be eliminated or reduced by reasonable accommodation.”
Employees with High-Risk Family Members
While the American with Disabilities Act (ADA) prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The 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.” Thus, an employee is not entitled to accommodation under the ADA in order to avoid exposing a high-risk family member from COVID-19.
Employers are free to accommodate such employees if it chooses to do so but are warned to be careful not to engage in disparate treatment on a protected EEO basis when offering employment flexibilities beyond what the law requires.
Responding to Pandemic Related Harassment, Particularly Against Asian Employees
Harassment against those “who are or are perceived to be of Chinese or other Asian national origin” has risen due to the pandemic. Employers should be ready to address this type of harassment and the EEOC recommends that managers stay “alert to demeaning, derogatory, or hostile remarks.” Managers should understand such harassment can “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.” Employers should ensure that managers are trained on quickly recognizing and resolving issues of harassment before they “rise to the level of unlawful discrimination.”
Employers are encouraged to send a reminder to all employees, remote and non-remote, a reminder regarding Title VII’s prohibition on harassment, their company harassment policies, as well as invite employees to report any such harassment to management if they experience or witness it.
Inviting Employees to Request Accommodations or Flexible Work Arrangements
“The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – 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.” Employers may send notice out to its employees with “all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, 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.” Should an employer provide such a notice to its employees, they should “ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply.”
Accommodations for Employee Screening
If an employer has a COVID-19 prevention screening method in place for returning employees, employees entering the worksite may request an alternative method of screening due to medical conditions. Employers should treat such requests as requests for reasonable accommodations and “proceed as it would for any other request for accommodation under the ADA.” If the employee’s disability is not obvious or already known to the employer, the employer may request additional information and medical documentation to establish that the condition is a disability and support the employee’s request. Employers may then determine if they are able to provide the accommodation or an alternative effective accommodation, absent undue hardship.
Employers are encouraged by the CDC to offer maximum flexibilities to employees age 65 and over because they are higher risk for a severe case of COVID-19. “The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.” Older workers are not entitled to reasonable accommodation due to age under the ADEA, but employers may “provide flexibility to workers age 65 and older,” even if doing so “results in younger workers ages 40-64 being treated less favorably based on age in comparison.”
Caregivers and Family Responsibilities
The EEOC also addresses “sex discrimination considerations” when employers provide work arrangements or benefits to employees with school-age children. Employers are free to provide flexibilities to employees with school-age children. The EEOC warns, however, that employers cannot treat “employees differently based on sex or other EEO-protected characteristics.” Title VII prohibits favorable treatment to female employees over “male employees because of a gender-based assumption about who may have caretaking responsibilities for children.”
The EEOC states that employers cannot exclude an employee from the workplace involuntarily due to pregnancy. Title VII holds that discrimination based on pregnancy is sex discrimination. Employers are “not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.” Requests for reasonable accommodations due to pregnancy-related medical conditions by pregnant employees must be considered by employers under the usual ADA rules. Title VII may also entitle pregnant employees “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.”