Pension & Benefits News Updated COVID-19 Q&As talk disability, age, pregnancy discrimination
Tuesday, June 23, 2020

Updated COVID-19 Q&As talk disability, age, pregnancy discrimination

By Pension and Benefits Editorial Staff

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.

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 involuntarily excluding 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 EEOC 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 involuntarily due 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 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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