On June 11, 2020, the U.S. Equal Employment Opportunity Commission issued new guidance that addresses numerous pandemic-related topics.
Perhaps most notably, the guidance states that employers cannot exclude workers who are over age 65 from the workplace even though they are in an age group that the CDC says is at an increased risk of severe illness or death related to COVID-19. However, the EEOC also said that employers are free to provide additional "flexibility" to employees who are over age 65, even if it results in younger workers, ages 40 to 64, being treated less favorably based on age in comparison.
The EEOC's new guidance also states that employers cannot bar pregnant employees from coming back to work, and they may be required to provide pregnant employees with reasonable accommodations under the Americans with Disabilities Act or the Pregnancy Discrimination Act.
In addition, the guidance states that employees are not entitled to an accommodation under the ADA (e.g., teleworking) 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. The ADA does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom the employee is associated.
The guidance also addresses pandemic-related harassment directed at employees who are, or are perceived to be, of Chinese or other Asian national origin, including about the coronavirus or its origins. The EEOC strongly encourages employers to ensure their managers understand in advance how to recognize such harassment, which can occur regardless of whether employees are in the workplace, teleworking, or on leave.
In advance of having employees return to the workplace, the new EEOC guidance further states that employers can make information available 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. An employer may choose to include in such a notice all the medical conditions listed by the CDC that may place people at higher risk of serious illness if they contract COVID-19, and explain that the employer is willing to consider requests for accommodations or flexibilities on a case-by-case basis. This same guidance applies if an employee requests an alternative method of symptom screening due to a disability or medical condition.
Lastly, the guidance emphasizes that employers may provide any flexibilities requested by employees as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
The updated EEOC guidance can be found here.
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