On June 11, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an update on its website. The update expands EEOC’s COVID-19 technical assistance questions, providing guidance to employers on the following questions:

Can employees with high-risk family members request an accommodation?

The EEOC states clearly that employers are not required to provide accommodations to employees with family members who are at high risk for COVID-19.  The EEOC states that “The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.”

An employer, at their discretion, may decide to be flexible.  However, an employer doing so must be mindful not to engage in disparate treatment on protected classes when doing so.

How do I prevent COVID-19 related harassment?

The EEOC recommends that employers remain vigilant of harassment aimed at employees of Chinese or Asian descent. They specifically mention managers, who should be trained to recognize such harassment and how to quickly resolve such problems. The EEOC also recommends that employers send a general reminder to everyone on “Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management.” Employees may also be reminded that harassment may lead to disciplinary action, including termination.

Due to COVID-19 more workers are working remotely.  As such, the EEOC suggests employers communicate to employees that electronic harassment (i.e. via email, calls, video conference) will not be tolerated.

Can I invite employees to request accommodations before returning to work?

The EEOC advises employers to have employees’ request accommodations prior to returning to work.  Employers may do this by providing notice. The notice should instruct employees on “who to contact and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have … medical conditions.” Additionally, “employers should ensure that whoever receives [employee] inquiries know how to handle them” consistent with federal employment nondiscrimination laws.

What if an employee asks for an alternate screening method?

The EEOC recommends that employers be flexible when employees going to work request an alternative method of screening due to a medical condition. The request is a reasonable accommodation under the ADA. Therefore, an employer “should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act.”

Additionally, the EEOC states, “if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.”

What protections do employees over 65 have?

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals 40 or and older.  However, unlike the ADA, “the ADEA does not include a right to reasonable accommodation for older workers due to age.”

The EEOC outlines how the “CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 … and therefore has encouraged employers to offer maximum flexibilities to this group.” Consequently, employers may voluntarily offer flexibility to workers age 65 or older, “even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.”

The EEOC notes that employees 65 and older may also have “medical conditions that bring them under the protection of the ADA.”  Therefore, an employee 65 or older may request accommodation based on disability versus their age.

Will I have liability for providing work flexibility to employees with school-aged children?

Although employers can provide any work flexibility to employees, the EEOC indicates there are potential  “sex discrimination” issues. Employers can get in trouble if work flexibility to parents with school-aged children is not done equally. For example, female employees cannot be given more favorable treatment when compared to male employees because of a “gender-based assumption about who may have caretaking responsibilities for children.”

Can I exclude a pregnant employee from work due to COVID-19?

According to the EEOC, excluding a pregnant employee because they are pregnant is “sex discrimination”.  Even if an employer may be “motivated by benevolent concern”, such discrimination is not permitted under Title VII.

Does a pregnant employee have a right to accommodation during COVID-19?

The EEOC notes that pregnant employees have 2 federal laws that may trigger accommodations. One is under the ADA, for a pregnancy-related medical condition. The second is under Title VII, in the Pregnancy Discrimination Act. “This means that a pregnant employee may be entitled to job modifications… to the extent provided for other employees who are similar in their ability or inability to work.” This means that a pregnant employee may be entitled to job accommodations, including remote work, alternate work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.

If your business needs assistance in employment matters, please contact Hackler Flynn & Associates.

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.

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