On June 11, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its technical assistance Questions & Answers (“Q&As”) to address a number of issues and questions related to employers and employees dealing with return to physical workplaces as state and local governments change public health restrictions.
All Q&As in the document are identified by a date log showing when they were added.
Here are summaries of the new guidance:
- Employers DO NOT have any obligation to provide accommodations to employees in order to avoid exposing employees’ family members who may be at higher risk for contracting COVID-19. The ADA’s prohibition against discrimination based on association with an individual with a disability covers only disparate treatment or harassment. Employers are not required to provide accommodations to individuals who do not themselves have a disability due to disability-related needs of family members or other persons with whom employees are associated.
- Employees with disabilities or religious reasons may be entitled to reasonable accommodations to provide an alternate method of symptom screening. If an employee requests such an accommodation the employer may request and consider documentation in support of the request in reaching its decision whether or not to provide the requested accommodation.
- Employers DO NOT have to provide reasonable accommodations to workers based on their age. However, employers may voluntarily provide flexibility to workers over age 65 even if this results in younger workers covered by the ADEA (ages 40-64) receiving less favorable treatment.
- Even though the CDC has identified individuals over the age of 65 as being at higher risk for severe COVID-19 cases, under the ADEA employers MAY NOT make a “benevolent” decision to exclude workers over age 65 from the workplace. Employers should keep in mind that employees of all ages may have medical conditions which may bring them under the protection of the ADA and entitle them to reasonable accommodations.
- Employers MAY provide information and guidance directed to all employees who are designated for returning to the physical workplace noting willingness to consider requests for accommodation or flexibility on an individualized basis.
- Employers MAY NOT exclude pregnant workers from the workplace because of COVID-19 concerns. Pregnancy-related medical conditions (not pregnancy itself) may entitle an employee to reasonable accommodations under the ADA; and the Pregnancy Discrimination Act requires that employers treat employees affected by pregnancy, childbirth, and related medical conditions the same as they treat others who are similar in their ability or inability to work due to different kinds of medical conditions.
- If employers provide flexibility to employees with school-age or younger children due to school or child care closures, they must take care not to provide female employees more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
- EEOC counsels employers to be aware of the possibility of unlawful harassment of employees due to national origin, especially directed to who are or are perceived to be Asian and also to be vigilant about electronic harassment by teleworking employees.
For more information, please contact Joseph Hofmann or the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.
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