Last week, the Equal Employment Opportunity Commission (EEOC) issued new guidance to employers related to addressing COVID-19 in the workplace. As many workplaces are reopening, or planning to reopen, this updated guidance is timely and helpful for many employees and employers. Below is a summary of the major provisions of the additional guidance.
As many workplace sites are opening back up, the EEOC guidance addresses the question of employers inviting employees to request flexibility in workplace accommodations. The guidance is clear that, under the Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA), employers may either:
- Send notice to all employees about who to contact if they wish to request an accommodation, listing the medical conditions that could place individuals at higher risk of serious illness if they were to contract COVID-19, and explain that the employer is willing to consider requests from employees who have these (or other) conditions, on a case-by-case basis; and/or
- Send a general notice to all employees designated to return to the workplace, explaining that the employer is willing to consider requests for accommodation on an individualized basis.
The EEOC guidance clarifies that if an employee who is re-entering the worksite requests an alternative screening method, this request should be treated like any other request for a reasonable accommodation. Requests for alternative screening as a religious accommodation should be evaluated under Title VII.
An employer may provide benefits and flexibilities, such as telework, to employees with school-age children, so long as employers are not treating employees differently based on sex or other protected categories. “For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.”
With respect to age, the EEOC guidance is clear that, despite the fact that individuals age 65 and over are at higher risk of suffering severe illness if they contract COVID-19:
- The ADEA prohibits a “covered employer” from involuntarily excluding someone from the workplace based on the person being 65 or older, regardless of whether the employer acted for benevolent reasons.
- Although the ADEA does not include a right to reasonable accommodation for older employees due to age, it does not prohibit employers from providing flexibility to employees age 65 and older.
- Employees who are 65 years old or older and have medical conditions that bring them under the protection of the ADA as individuals with disabilities may request reasonable accommodation for their disability, instead of their age.
The EEOC guidance clarifies that, similarly to employees who are aged 65 and over, with respect to pregnant employees:
- An employer may not involuntarily exclude from the workplace, or otherwise take adverse action against, an employee based on pregnancy, even if the employer is motivated by benevolent concern.
- Pregnant workers may request a reasonable accommodation based on pregnancy-related medical conditions that qualify as disabilities under the ADA.
In addition, Title VII as amended by the Pregnancy Discrimination Act, requires that women affected by pregnancy, childbirth and other related medical conditions be treated the same as other workers who are similar in their ability or inability to work. “This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.”