Just yesterday, the EEOC updated its guidance for employers on their duties and obligations when returning their employees to work. We now have new, much more specific answers to some frequently asked questions on how to manage “high risk” people and how to manage employees working remotely. Here’s some of the most notable new stuff:
HIGH RISK PEOPLE:
In this category, the EEOC discusses employees over 65, pregnant workers, and people living with high risk family members. The keys here are not to exclude and not to favor high risk employees.
How about those employees over 65? Are they entitled to accommodations with respect to COVID19 and new procedures based on their age status? NO! But, do not let that easy answer fool you. It is true that the ADEA does not require accommodations, but the ADA does. If the request for accommodation involves a disability of any sort, including those may stem from the aging process, then the employer must proceed with the interactive process under the ADA. If not, while the employer is free to provide accommodations to meet employee’s requests, it need not do so.
Importantly, however, the employer cannot exclude from returning to work or other opportunities those employees over the age of 65 merely because of their statistically high risk status. Doing so for that reason alone would certainly amount to age discrimination and a violation of the ADEA.
What about pregnant employees? Are they entitled to accommodations? Potentially. First, if there is a pregnancy complication then the ADA would require a reasonable accommodation due to such condition. Second, even if no ADA issue exists, a pregnant employee is always entitled to be treated the same as other employees with the same limitations or abilities. They should not be favored or excluded or treated differently at work than those others similarly situated.
Also, just like employees over 65, employers cannot exclude pregnant workers solely on the grounds that such workers are statistically high risk with respect to COVID19. Such exclusion would amount to sex discrimination in violation of Title VII.
What about that employee who lives with a high risk family member? Does that employee have a right to a reasonable accommodation on that basis alone? NO! Of course, while that status may not be legally relevant, any discrimination may fall within a category of unlawfulness due to its potential impact against a protected class. In short, always be fair and reasonable, but know that this category alone does not constitute a protected class.
WORKING FROM HOME:
Employers who have people working from home remain responsible for the conduct of those teleworking employees on the job. For example, to the extent any teleworking employee harasses from home, the employer must respond in the same manner as if such employee was in the employer’s physical workspace.
Are there sex discrimination considerations for allowing accommodations for child care reasons? Yes. Employers must be sure not to provide benefits on the basis of sex. Here, on the issue of childcare, the EEOC has noted that employers may favor women over men. The short answer here? Don’t.
OTHER ACCOMMODATION ISSUES:
What about a request for accommodation with respect to screening procedures? Do you need to hear them? YES! Same standards apply under the ADA for accommodation requests about screening as for accommodation requests regarding any other aspect of the employment relationship.
How do you deal with an accommodation request? Listen. Conduct the interactive process. Work to develop a reasonable accommodation. Know that flat out failing to conduct an equally effective COVID19 screening might not be reasonable given the current pandemic and a request to simply be exempted from the screening while also working in the employer’s workspace may constitute an undue burden.
What information do you gather during the interactive process? Determine if there is a disability. Understand the limitations it poses. Request medical documentation to support accommodation request if necessary. Suggest alternative accommodation if appropriate.
Can employers be proactive and invite employees to explore flexible work arrangements? Yes. But do so for all employees. As part of that invitation, you can include with your invitation a list of CDC list of high risk conditions to help people understand whether they may wish to ask for an accommodation. You can also have different contact people to take differing requests for accommodation based on the differing reasons for such requests. So, you may have one person to manage pregnancy requests, another for child care, another for disabilities, another for other high risk categories. Whatever you do, just ensure that decision makers are knowledgeable and coordinated so that they make consistent and appropriate decisions for your employees.
OTHER TITLE VII ISSUES:
It is truly maddening that the EEOC would ever need to state this last point, but it nevertheless is sadly a point that must be stated. Harassment and/or discrimination against people who are or who simply perceived as Asians is illegal. It is also obviously wrong and illogical, as are race discrimination and national origin discrimination generally. Given the current pandemic, however, and the fact that the conventionally accepted likely origination of the virus was from Wuhan, China, the EEOC suggests sending reminders to employees that harassment on the basis of national origin is wrong and unlawful. You may also want to point out that discrimination against Asian people is wrong and unlawful. Additionally, you might want to remind employees of the process generally for reporting harassment concerns internally and/or to the EEOC. Knowledge can give potential targets more confidence and comfort in the workplace.
In short, accommodate disabilities, do not exclude the high risk, and do not tolerate discrimination or even mistakenly allow it to occur from unfounded assumptions. Law, like business, is easier said than done. Contact counsel for any specific guidance you may need. In the meantime, the EEOC’s publication can be found in the following link à