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EEOC's Expanded Covid-19 Telework and Return to Workplace Guidance Demands Robust Management Training

June 16, 2020

Recently, the U.S. Equal Employment Opportunity Commission (EEOC) issued an update to its COVID-19 technical assistance publication. The update provides new guidance on various topics, including initiating discussions with employees about accommodations and flexible work arrangements for returning back to work, age- and pregnancy-related discrimination, caregiver responsibilities, accommodating employees with high-risk family members, and safeguarding employees from pandemic-related harassment. The guidance is as follows:

Inviting Advanced Discussion on Accommodations or Flexible Work Arrangements
The EEOC encourages employers to ask employees about accommodations needed prior to returning to the workplace and to begin the interactive process on an individualized basis. The Americans With Disabilities Act (ADA) permits employers to make information available in advance to all employees by sending a general notice about who employees should contact if they wish to request an accommodation they may need upon return to the workplace, even if no date has been announced for their return. 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. The EEOC also notes that the employer should ensure that those who are designated to receive such requests are knowledgeable on how to handle them in accordance with federal anti-discrimination laws.

Accommodations for Employee Screening
According to the EEOC, a request by an employee for an alternative method of screening due to a medical condition should be treated as a request for a reasonable accommodation under the ADA. 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. Additionally, an alternative method of screening may be required as a religious accommodation under Title VII of the Civil Rights Act of 1964.

Age Discrimination
The EEOC added a new section to its guidance on the topic of age discrimination, noting that “[t]he CDC has explained that individuals age 65 and older are at 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 EEOC notes that the ADEA 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. The EEOC points out that the ADEA does not require accommodations on account of age, unlike disability accommodations required by the ADA, but employers, upon request by the employee, may voluntarily provide accommodations to employees age 65 and older “even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.”

Caregivers and Family Responsibilities
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 the employer’s “gender-based assumption about who may have caretaking responsibilities for children.”

Pregnancy
Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. The EEOC advises that 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. The EEOC also notes that pregnant employees may be entitled to accommodations if requested under the ADA due to pregnancy-related medical conditions, and that Title VII may require providing the same type of job modifications or flexible work arrangements to pregnant employees as are afforded to other employees similarly unable to work.

Accommodating Employees with High-Risk Family Member
The guidance reminds employers that 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 in order to protect a family member with a disability from potential COVID-19 exposure. However, an employer is free to provide such flexibilities if it chooses to do so, but should be careful not to make decisions based upon protected EEO characteristics.

Safeguarding Against Harassment
The EEOC warns that managers should be alert to pandemic-related harassment such as 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. The EEOC suggests that employers consider “send[ing] 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.” In addition, the guidance states that employers should be alert to the same forms of harassment in remote working arrangements, such as harassment through emails, social media, or video conferences. Employers may also remind employees that harassment can result in disciplinary action up to and including termination.

The EEOC’s new COVID-19-related guidance can be found HERE.

Employers should become familiar with the EEOC’s new guidance and ensure that their managers are trained promptly on these important employment issues, many of which can be applicable when teleworking as well as when returning to the workplace. If you have any questions or need assistance, please contact a member of the firm’s Labor and Employment group.

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