These updates expand upon the existing topics of reasonable accommodation, workplace harassment, return to work, age, caregiver/family responsibilities and pregnancy. However, an important insight for employers to grasp is how these updates highlight a connection between protections already afforded employees by the ADA, ADEA, and Title VII with the newer COVID-19 related protection measures such as reopening the workplace, employee workplace screening and temporary flexible telecommuting arrangements.
The updates, effective 6/11/2020, are summarized below.
-> Reasonable Accommodation
No Required Accommodations for At-Risk-Family Members
This update clarifies that under the ADA an employee is not entitled to accommodation 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. What this means is that while the ADA prohibits discrimination against an employee based on his/her own individual disability/risk of severe illness, an employer is not required to accommodate that employee for a family members disability related needs.
- For example: "an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure."
The EEOC goes on to clarify that although not legally required - employers are free to elect to make these accommodations so long as employers are "careful not to engage in disparate treatment on a protected EEO basis."
-> Pandemic-Related Harassment
Emails & Other Forms of Telecommuting Harassment
The update to this section clarifies that if employer learns that an employee, who is teleworking due to the pandemic, is sending harassing emails, (or calls, or via platforms for video or chat communication and collaboration), to another worker the employer should take the same disciplinary actions it would take if the offending employee were actually in the workplace.
As with the overall guidance in this section, Employers are cautioned to be especially alert to this type of pandemic related harassment of Asian employees and should also consider issuing a statement reminding employees, (including third-party's who have relationships with the company), that harassment is not tolerated in the workplace.
-> Return to Work
Advanced Discussion of Accommodation & Flexible Work Arrangements
This update encourages employers, as a best practice, to make accommodation contact information available to all employees, in advance of reopening or returning to the workplace. This can be done even if there is no set date for a reopening or having employees officially return to the workplace.
One suggested way is for the employer to send a general notification to all employees, who are designated to return to the workplace, that the employer is willing to consider requests for accommodation/flexibility on a case by case basis.
No matter what approach is used, the ADA recommends following CDC guidance and ensuring "whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply."
Accommodations for Employee Screening
This update provides guidance on how an employer can handle an employees requests for an alternative method of screening, due to a medical condition, when entering the workplace.
The ADA instructs that since this is a request for a reasonable accommodation the employer should proceed "as it would for any other request for accommodation under the ADA or the Rehabilitation Act." Additionally, employers can ask, if the disability is not obvious or already known, that the employee produce medical information to establish that the condition is a disability.
This is a new added section that provides clarity regarding whether or not employees, who are aged 65 or older, are protected under the federal employment discrimination laws since the CDC has encouraged employers to offer maximum flexibility to this group due to a higher risk of a sever case of COVID-19.
The EEOC notes that the Age Discrimination in Employment Act (ADEA) prohibits discrimination against employees age 40 or older and therefore prohibits an 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.” However, while the ADEA does not require employers to reasonably accommodate employees for age-related reasons, it does not prohibit employers from providing flexible work arrangements to employees aged 65 or older “even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.”
-> Caregivers/Family Responsibilities
Sex Discrimination Considerations
In this new added section the EEOC addresses caregiver and family responsibilities in relation to sex discrimination considerations when an employer provides remote working arrangements or other benefits to employees, with school-aged children, affected by pandemic-related school closures.
The EEOC states that employers should not treat employees differently based on sex or other protected characteristics when providing any flexible arrangements or benefits.
- For example, female parents should not be treated more favorably compared to male parents because of the employer’s “gender-based assumption about who may have caretaking responsibilities for children.”
Cannot Involuntarily Exclude & Accommodations
In this new added section the EEOC addresses pregnancy considerations by reminding employers that pregnancy should not be used to involuntarily exclude an employee from the workplace even when motivated by benevolent concerns.
Additionally pregnant employees may be entitled to accommodations under the ADA and Title VII whereby the employer may need to provide the same type of job modifications or flexible work arrangements to pregnant employees as are afforded to other employees similarly unable to work.
Small-midsize employers, (employers with 15 or more employees), should pay special attention to ensure that your business is in compliance with these guidelines. The EEOC recommends, and I agree, that employer compliance can be furthered by ensuring your managers and executive staff are trained and attentive so that they have the ability to recognize potential issues, as they arise, in order for the company to effectively address them.