The Equal Employment Opportunity Commission on June 11 released updates to its document “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
The guidance, presented in a Q&A format, is especially critical as more businesses prepare to re-open facilities for the first time since state governments issued stay-at-home orders in March and April.
The June 11 guidance updates address Return to Work, Age, Caregiver/Family Responsibilities and Pregnancy questions that employers and employees may have as they adjust to no longer working from home.
Q. 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?
A. Yes. Under the Americans with Disability Act (ADA) and the Rehabilitation Act, employers can provide information on how to request accommodation for a disability that workers may need upon return to the workplace, even if no date has been announced for their return.
You can begin the interactive process as soon as requests come in.
Your notice must include who to contact and can include all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19.
Explain clearly that you are willing to consider requests from any employee who has these or other medical conditions on a case-by-case basis.
Make sure you specify if there are different contacts who will handle accommodation requests. For example, should employees with disabilities or pregnant workers call a different HR staffer or office than employees whose request is based on age or child-care responsibilities?
Make sure every contact understands the various federal employment nondiscrimination laws that may apply to accommodations due to a medical condition, a religious belief, pregnancy or other covered reasons.
Note: You can notify all of your workers or only those who are scheduled to return to work. Either approach is consistent with the Age Discrimination in Employment Act (ADEA), the ADA, and the May 29, 2020 CDC guidance .
Q. What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?
A. 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.
Similarly, if an employee requests an alternative method of screening as a religious accommodation, you’ll need to determine if accommodation is available under Title VII.
Age considerations for return to work
Q. 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?
A. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. As such, you cannot involuntarily exclude an employee from returning to the workplace only because they are 65 or older, even if you are doing so to protect the employee or for another benevolent reason.
Keep in mind that, unlike the ADA, the ADEA doesn’t require reasonable accommodation for older workers due to their age but you can voluntarily provide flexibility to workers age 65 and older, even if it results in younger workers ages 40-64 being treated less favorably.
And, workers age 65 and older who have medical conditions protected as disabilities under the ADA can request reasonable accommodation for their disability as opposed to their age.
Q. 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?
A. Just make sure you’re not treating employees differently based on sex or other EEO-protected characteristics. Under Title VII of the Equal Rights Act, you can’t give female employees more favorable treatment than male employees, for example, because of a gender-based assumption about who may have caretaking responsibilities for children.
Q. Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?
Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, you are not permitted to single out workers for adverse employment actions, including involuntary leave, layoff, or furlough, just because they are pregnant (or nursing). On the other hand, pregnant employees may be entitled to accommodation under ADA or Title VII.
Q. Is there a right to accommodation based on pregnancy during the pandemic?
A. There are two separate considerations here.
First, pregnancy-related medical conditions may be disabilities under the ADA, even though pregnancy itself is not. If an employee who is scheduled to return to work requests reasonable accommodation due to a pregnancy-related medical condition, consider it under the usual ADA rules.
Second, under Title VII as amended by the Pregnancy Discrimination Act (PDA), women affected by pregnancy, childbirth and related medical conditions may be entitled to any job modifications – including telework, changes to work schedules or assignments and leave – provided for other employees who are similar in their ability or inability to work.
While the circumstances created by this crisis make this even more complicated than usual, it’s critical that you make sure supervisors, managers, and human resources personnel know how to recognize and avoid disparate treatment in violation of Title VII.
For More Information
There’s a lot of uncertainty about what that new normal will look like, but we do know that leaders, managers, and HR professionals will shape the future of work.
That also means they’ll spend a lot of time navigating the significant challenges it will pose.
The ADA, employment laws, privacy laws – these will all be stretched and tested by this crisis in ways we’ve never imagined.
Join your peers for our live workshop How to Safely Return to Work Amidst COVID-19 at 1 PM ET on Tuesday, June 30th, and available on-demand anytime, to prepare yourself and your business to navigate the uncharted waters ahead.
You’ll learn how to:
- Conduct an orderly, legal, and safe return-to-work procedure
- Anticipate and address the concerns of older employees, employees with disabilities, and employees who are reluctant to return
- Make – and keep – your workplace as safe as reasonably possible
- and much more
About the Speaker
Jim Castagnera holds an M.A. in Journalism from Kent State University and a J.D. and Ph.D. (American Studies) from Case Western Reserve University. He practiced law for 36 years as a labor, employment and intellectual-property attorney; general counsel; and associate provost & legal counsel for academic affairs at Rider University.
Currently, he devotes his full-time to writing, teaching and training. He is the chief consultant for Holland Media Services, a writing, training and communications company; a founding member of LMC Conflict Training & Conciliation, Inc., and an officer of the International Cyber, Privacy & Compliance Risk Institute.
Click here for registration and more information.