Labor & Employment Law Daily Updated EEOC COVID-19 Q&As talk harassment, age, disability, pregnancy, and sex discrimination
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Monday, June 15, 2020

Updated EEOC COVID-19 Q&As talk harassment, age, disability, pregnancy, and sex discrimination

By Pamela Wolf, J.D.

Among other things, the EEOC Q&As remind employers that they cannot involuntarilyexclude employees over age 65 or those who are pregnant from the workplace during the pandemic, even for benevolent reasons.

On June 11, the EEOC posted new updates to its expanded technical assistance publication addressing COVID-19-related questions and answers arising under the federal equal opportunity laws. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, provides various approaches that employers may adopt as they plan for employees returning to the workplace, including providing information to all employees on who to contact with requests for disability accommodation or other flexibilities, and inviting employees to make any requests in advance that the employer will consider on an individualized basis.

Pandemic-related harassment. One of the new Q&As addresses how employers may respond to pandemic-related harassment, particularly targeted to employees who are or are perceived to be Asian. The EEOC said that managers should be alert to “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.”

Make sure management knows what it is. Title VII-covered employers should make sure that management understands in advance how to recognize this type of harassment, which may occur using electronic communication tools, no matter whether employees are in the workplace, teleworking, or on leave, as well as in person between employees at the worksite.

Employee harassment at the worksite may also originate from contractors, customers, or clients, or from patients or their family members at health care facilities, assisted living facilities, and nursing homes. “Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination,” according to the EEOC.

Workforce reminder. The antidiscrimination agency also suggested that employers may send a reminder to their entire workforce noting Title VII’s prohibitions on harassment; reminding employees that harassment will not be tolerated and can result in disciplinary action up to and including termination; and also inviting anyone who experiences or witnesses workplace harassment to report it to management.

Harassment while teleworking. What actions should an employer take when it learns that an employee who is teleworking due to COVID-19 is sending harassing emails to another worker? Here the EEOC said: “The employer should take the same actions it would take if the employee was in the workplace. Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration.”

Inviting flexibility requests before returning to work. What are the best practices, in advance of having some or all employees return to the workplace, for an employer to invite employees to request flexibility in work arrangements?

Who-to-contact notice. The EEOC noted that the ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact, should they want to request accommodation for a disability that they may need when they return to the workplace, even if no date has yet been announced for their return. For requests received in advance, the employer may begin the interactive process.

Employers also may include in the notice all the CDC-listed medical conditions that may put a person at higher risk of serious illness if they contract COVID-19, provide instructions on who to contact, and explain that it is “willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions,” the EEOC said.

General notice to returning employees. Employers may also send a general notice to all employees designated to return to the workplace, noting that it is willing to consider requests for accommodation or flexibilities on an individualized basis. Here, employers should specify whether the contacts differ depending on the reason for the request (e.g., if the office or person to contact is different for employees with disabilities or pregnant workers than it is for those whose request is based on age or child-care responsibilities).

Either approach works. The EEOC said either of these approaches are consistent with the ADEA, the ADA, and the May 29, 2020, CDC guidance emphasizing the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

However, under both approaches, employers should make sure that whoever receives inquiries knows how to handle them consistent with the various federal employment nondiscrimination laws that may apply, such as those applicable to accommodations for a medical condition, a religious belief, or pregnancy.

Alternative screening method request. What should employers do when an employee entering the worksite requests an alternative method of screening due to a medical condition? The explained that this is request for reasonable accommodation that employers should handle in the same manner as they would for any other request for accommodation under the ADA or the Rehabilitation Act.

“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,” the federal agency said. “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.”

Religious accommodation. Where an employee has requested an alternative screening method as a religious accommodation, the employer should likewise determine if accommodation is available under Title VII.

Over age 65. Do employees age 65 and over have protections under the federal employment discrimination laws? The EEOC noted that 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.

Can’t involuntary exclude, but can provide flexibilities. The ADEA prohibits employment discrimination against individuals age 40 and older, and it would prohibit a covered employer from involuntarilyexcluding an individual from the workplace based on his or her being 65 or older, the EEOC explained. This is the case even where the employer has acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

“Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age,” the federal agency observed. “However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.”

Medical conditions. The EEOC also noted that medical conditions may come into play. Workers age 65 and older may have medical conditions for which they are protected under the ADA as individuals with disabilities. Accordingly, they may request reasonable accommodation for their disability as opposed to their age.

Caregivers and family responsibilities. The EEOC had this to say on the question of whether there are sex discrimination considerations when 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. “Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics.” Under Title VII, for example, 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.

Pregnancy. The updates also added two Q&As related to pregnancy. In the first one, the EEOC advised that due to the pandemic, employers may not exclude employees from the workplace involuntarilydue to pregnancy. Under Title VII, sex discrimination under includes discrimination based on pregnancy. “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 antidiscrimination agency explained.

Accommodations under the ADA. As to the right to accommodation based on pregnancy during the pandemic, the EEOC pointed to two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may amount to disabilities under the ADA, even though pregnancy itself is not an ADA disability. Where an employee requests reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Title VII accommodations. Second, the EEOC explained that Title VII as amended by the Pregnancy Discrimination Act “specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.” Accordingly, 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.

Here, the federal agency suggested that employers make sure that supervisors, managers, and HR personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

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