The Equal Employment Opportunity Commission (EEOC) has prepared and is periodically updating its website entitled “Technical Assistance Questions and Answers” related to the many novel challenges confronting employers with the COVID-19 outbreak. The technical assistance is presented as a series of questions and answers.
The EEOC on June 11 updated its guidance pertaining to the following categories – reasonable accommodation, pandemic related harassment, return to work, age, caregivers/family responsibilities and pregnancy – and the guidance is interpreted as described below.
|No.||Category||Question||Interpretation of Updated Guidance|
|1.||Reasonable Accommodation||Is an employee entitled to an accommodation under the Americans with Disabilities Act (ADA) in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?||No. An employee is not entitled to such an accommodation.
Limits on ADA Coverage. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member. Thus, for example, an employee who is not disabled would not be entitled to work from home in order to protect from exposure a family member who is disabled.
Comply with Caution. An employer may voluntarily provide such flexibility, but if it does, it must be careful not to engage in different treatment among employees in a way that is restricted under EEO laws.
|2.||Pandemic-Related Harassment||How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian?||Employers need to be alert to harassing behavior and address such a situation preemptively.
One way to do this is to engage in communications with employees to ensure that management understands in advance how to recognize such behavior, and to remind employees of their harassment-free environment, and the corresponding disciplinary consequences for engaging in such behavior. In doing so, employers must recognize that this harassment may occur both in person and away from the workplace, such as through social media, and may also originate with a contractor, a customer or a client.
|3.||Pandemic-Related Harassment||An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker. What actions should the employer take?||The employer should take the same corrective or disciplinary actions it would take if the employee were in the workplace.|
|4.||Return to Work||As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?||Yes.
Communicating About Requesting Accommodations. Employers are legally permitted to make information available in advance to all employees about whom to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return.
Information to Include. The information an employer makes available may include all CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19. Such information can also provide instructions about whom to contact, making clear that the employer is willing to consider on a case-by-case basis any medically-related accommodation requests.
Differing Information for Differing Circumstances. Further, the information an employer issues may address differing circumstances for different individuals, such as those with disabilities or pregnancy issues compared with those seeking accommodation based upon age or child-care responsibilities.
Management Training. The EEOC further emphasizes that whoever receives accommodation inquiries must know how to handle them consistently with differing applicable nondiscrimination laws.
|5.||Return to Work||What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?||Nature of Request. This qualifies as a request for reasonable accommodation. Therefore, an employer must proceed as it would for any other request for accommodation under the ADA, except as noted below.
Responding to the Request: Voluntary Grant. Such a request will usually trigger an interactive process between the employer and the requesting employee. However, if the employer determines that the requested change is easily and inexpensively provided, it might voluntarily choose to make such accommodation available to anyone requesting it, without an interactive process.
Responding to the Request: Interactive Procedure. Alternatively, if the disability is not obvious or already known, an employer seek information from the employee to establish the nature and specific limits of the condition to assess its status and the nature of the accommodation required. This could include requesting medical documentation, followed by a determination whether that accommodation or an alternative could be provided, absent undue hardship.
Request for Religious Accommodation. If the request is for an alternative method of screening as a religious accommodation, the employer should determine if accommodation under ordinary Title VII guidelines.
|6.||Age||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. Do employees age 65 and over have protections under the federal employment discrimination laws?||Yes, under certain circumstances.
Coverage Under the ADEA. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. ADEA thus prohibits an employer from involuntarily excluding an individual from the workplace based solely on being age 65 or older.
Limitation on ADEA Coverage. Unlike the ADA, the ADEA does not include a right to reasonable accommodation for an older worker due to age. 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.
Potential ADA Coverage. Workers 65 and older also may have medical conditions bringing them under ADA protection as individuals with disabilities. As such, they may request reasonable accommodation for disability as opposed to age.
|7.||Caregivers / Family Responsibilities||If 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, are there sex discrimination considerations?||Yes.
Employers may provide any flexibilities as long as they do not treat employees differently based on sex or other -protected characteristics.
As to this specific question, employers should note that under Title VII, female employees are not entitled to more favorable treatment than male employees because of a gender-based assumption about who has childcare responsibilities.
|8.||Pregnancy||Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?||No.
Pregnancy discrimination is prohibited under Title VII. Therefore, employers are not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.
|9.||Pregnancy||Is there a right to accommodation based on pregnancy during the pandemic?||This question can only be answered by considering the effect of two employment discrimination laws: the ADA and the Pregnancy Discrimination Act (PDA).
Application of the ADA. A pregnancy-related medical condition may qualify as a disability under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.
Application of the PDA. The PDA specifically requires that women affected by pregnancy, childbirth, and related medical conditions are to be treated the same as others who have a similar condition affecting their ability or inability to work. A pregnant employee therefore may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave. Employers must ensure that management and HR personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
As we all navigate these unchartered territories, Jackson Walker is here for you and will continue to represent you and your business needs. If you are considering any zoning or entitlement changes, please reach out to let us know how we can assist you and navigate these new processes together.
For more information on these or other issues of guidance with EEOC requirements, contact Lionel Schooler (713-752-4516; firstname.lastname@example.org) for further assistance.
Lionel M. Schooler is a management-side employment lawyer and recognized authority on employment law, federal appellate practice, and arbitration. Lonnie’s employment practice focuses on counseling clients and litigating, on a nationwide basis, claims under all employment laws, wage and hour claims, and investigations by the Equal Employment Opportunity Commission, the U.S. Department of Labor, and the Texas Workforce Commission. Lonnie is also experienced as an arbitrator on the Commercial and Employment Panels of the American Arbitration Association and as an advocate. He was selected for inclusion by the National Association of Distinguished Neutrals and is certified as a Fellow of the Chartered Institute of Arbitrators for international arbitration matters. Since 2017, Lonnie has served on the Board of Directors of the Houston Bar Association. His previous editorial experience includes serving as editor-in-chief of The Houston Lawyer, a bimonthly publication of the Houston Bar Association.
Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.