In March, the Equal Employment Opportunity Commission provided guidance to address some specific issues presented by the current COVID-19 crisis to augment prior guidance which was promulgated in response to H1N1 pandemic. The EEOC continues to respond to confusion by supplementing its guidance. Most recently, on June 11, 2020, the EEOC provided answers to inquiries relating to accommodation obligations and exposure when restricting employees in high risk categories. These inquiries are presented below, along with a summary of the EEOC's responses. Because this information only governs federal anti-discrimination laws and not other laws that may be implicated, I have added my italicized notes to provide additional context.
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. Although the 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.
In the event the employer choses to provide flexibilities, it must make sure that it applies such flexibilities without regard to any protected class.
Note: Notwithstanding that the inapplicability of the ADA, the Family Medical Leave Act may apply (depending upon the circumstances) which would entitle an employee to protected leave to care for a child with a serious health condition. Additionally, for child COVID-19 illness or to care for a child who is home due to school or childcare closure, employers must comply with Families First Coronavirus Response Act which provides for paid sick leave and family and medical leave.
How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian?
Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins.
All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment. Harassment may 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 as well as third parties, such as vendors, customers or patients.
Managers should know their legal obligations and be instructed o quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination.
The EEOC guidance specifically states that Employers may choose to send a reminder to the entire workforce noting Title VII's prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management.
Employers may remind employees that harassment can result in disciplinary action up to and including termination.
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 employer should take the same actions it would take if the employee was in the workplace. Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration.
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. 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. If requests are received in advance, the employer may begin the interactive. An employer may choose to include in such a notice 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.
An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.
Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC Guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.
Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.
<strong>Note that this is at odds with Governor Lamont's phased reopening rules that employees over 65 and with underlying conditions to remain “at home.” Accordingly, employers should be mindful of these federal guidelines when approaching employees who are in these high risk categories.
What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?
This is a request for reasonable accommodation, and an 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 also may 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 Title VII.
Note: An example of an accommodation would be a virtual interview in lieu of an in-person interview to minimize COVID exposure.
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) 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.
Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. 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.
Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed to their age.
Note: As the guidance specifies, Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed to their age. Accordingly, before an employer denies an accommodation request, the employer should seek clarification.
Additionally, given Governor Lamont's Executive Order and phased reopening rules, employers should consider accommodations for employees over 65, as states are permitted to promulgate rules affording greater protections to employers.
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?
Employers may provide any flexibilities 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.
Note: Additionally, for child COVID-19 illness or to care for a child who is home due to school or childcare closure, employers must comply with Families First Coronavirus Response Act which provides for paid sick leave and family and medical leave. Accordingly, family leave is legally required for most businesses.
Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?
No. Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.
Is there a right to accommodation based on pregnancy during the pandemic?
There are two federal employment discrimination laws that may trigger accommodation for employees based upon pregnancy.
First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.
Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may 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. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
Note: It should also be noted that the Family and Medical Leave Act may apply to serious health conditions resulting from pregnancy. Additionally, Connecticut state law (Connecticut Fair Employment Practices Act) afford greater protection and accommodation obligations than federal law.
If you are an employer that has any questions or concerns about compliance with federal or state law during the COVID-19 pandemic, Rose Kallor, LLP provides a full range of legal counseling to private and public-sector employers. Please contact us with any COVID-19-related issues you face or anticipate facing, and we will be happy to assist you.