As employers direct their remote or furloughed employees back to the workplace, many are trying to accommodate the individual needs of some of their employees. However, they shouldn’t exclude pregnant or older workers, or those with children, in their return-to-work plans, according to new EEOC guidance.
“Even if motivated by benevolent concern, an employer isn’t permitted to single out workers on the basis of pregnancy,” the EEOC said in a June 11 update to its ongoing COVID-19 guidance.
Similarly, the Age Discrimination in Employment Act (ADEA) prohibits an employer “from excluding an individual from the workplace based on his or her being 65 or older,” says the new EEOC guidance.
In advance of having employees return to the workplace, employers can provide them accommodation information. Let them know how to request an accommodation before their return to the workplace.
An employer’s notice must include who to contact and can contain all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, such as those who are over 65 or have diabetes or heart disease. Employers need to inform employees they’re willing to consider requests on an individual basis.
Employers can either notify all employees or only those who are scheduled to return. Either approach is consistent with the ADEA, the ADA and the CDC guidelines.
EEOC’s new guidance specifically addresses the following employees:
No. 1: Employees over 65
The ADEA prohibits employment discrimination against individuals
age 40 and older.
Employers cannot involuntarily exclude an employee from returning to the workplace because they’re 65 or older, even if they’re doing it to protect the employee.
However, unlike the ADA, the ADEA doesn’t require reasonable accommodations for older workers due to their age. But employers can voluntarily provide flexibility to workers age 65 and older, even if it results in younger workers ages 40-64 being treated less favorably.
Older workers who have medical conditions protected as disabilities under the ADA can certainly request a reasonable accommodation for their disability as opposed to their age.
No. 2: Pregnant employees
Even if motivated by concern for employees, employers aren’t permitted to single out workers for involuntary leave, layoff or furlough because they’re pregnant or nursing.
However, pregnant-related medical conditions may be considered disabilities under the ADA, even though pregnancy itself isn’t. If an employee who’s scheduled to return to work requests an accommodation for a pregnancy-related condition, firms need to consider it under the normal ADA rules.
Women affected by pregnancy and related medical conditions may be entitled to a job modification – remote work, changes to work schedules, leave, etc., under the Pregnancy Discrimination Act (PDA). However, it must be provided for other workers who are similar in their ability or inability to perform job duties.
No. 3: Employees with children
Treating female employees differently – offering remote work, modifying schedules, etc. – based on their assumed childcare responsibilities is discriminatory, says the EEOC. In other words, female employees can’t be given more favorable treatment than male employees.
While the circumstances created by the coronavirus crisis make this even more complicated than usual, it’s critical for firms to make sure managers know how to recognize and avoid disparate treatment of workers.