The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance Q&A on June 11, addressing an employer’s handling of pandemic-related harassment, pregnant employees, employees with family members at higher risk of severe illness from COVID-19, and other workplace discrimination issues. Below is an overview of that guidance.
The latest guidance reminds employers that managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or another Asian national origin, including remarks related to the coronavirus or its origins. Employers are also reminded that unlawful harassment may occur using electronic communication tools such as email, calls, and video chat – regardless of whether employees are in the workplace, teleworking, or on leave – and that an employer should take the same actions it would take as if the harassment occurred in the workplace.
The EEOC reminds employers that Title VII of the Civil Rights Act includes discrimination based on pregnancy and that employers, even if motivated by benevolent concern, may not single out workers based on pregnancy for adverse employment actions, including involuntary leave, layoff or furlough. If a pregnant employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual Americans with Disabilities Act (ADA) rules. Pregnant employees may also be entitled 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 pursuant to Title VII as amended by the Pregnancy Discrimination Act.
High-Risk Family Members
The EEOC has confirmed that employers are not required to provide accommodations under the ADA to employees to avoid exposing family members at higher risk of severe illness from COVID-19. 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 the employee is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation to protect a family member with a disability from potential COVID-19 exposure. Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.
The EEOC has acknowledged the CDC’s inclusion of individuals age 65 and older as being at higher risk for a severe case of COVID-19 if contracted and has encouraged employers to offer maximum flexibilities to this age group. The EEOC notes, however, that the Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against employees age 40 and older and would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older. The EEOC notes this conduct is prohibited even if the employer acts for benevolent reasons such as protecting the employee due to a higher risk of severe illness. However, employers are free to provide flexibility to workers age 65 and older – the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.
Alternative Health Screening
The EEOC states that employees entering the workplace who request an alternative method of screening due to a medical condition are requesting a reasonable accommodation, and the employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act. If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer may also request medical documentation to support the employee’s request, and then determine if that accommodation, or an alternative effective accommodation, can be provided absent undue hardship. Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.
The EEOC also addresses the issue of sex-discrimination concerns 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. The EEOC states that employers may provide any flexibility 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 of who may have caretaking responsibilities for children.
If you have questions about the EEOC’s guidance for employers, please contact one of our labor & employment attorneys.