Last week, the EEOC updated What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The update contains important new guidance to help employers manage employee requests lawfully while reopening offices and other workplaces. Here’s a summary of the key takeaways.

Who is affected? The new guidance generally applies to all employers, though there are specific exceptions you may need to explore with your counsel. For example, ADA Title I does not apply to employers with fewer than 15 employees.

What employment laws does the guidance cover? As the guidance notes, the EEOC “enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries).” The EEOC also enforces Title VII of the Civil Rights Act (“Title VII”) (prohibiting discrimination based on race, color, national origin, religion, and sex, including pregnancy); the Age Discrimination in Employment Act (prohibiting discrimination based on age, 40 or older); and the Genetic Information Nondiscrimination Act. Other federal laws, as well as state or local laws, may provide employees with additional protections.

What categories of employees do the new additions to the guidance cover? The new additions to the guidance advise on the ever-critical topic of how employers should treat certain categories of employees. These categories include employees who: (1) request accommodations to avoid exposing COVID-19-vulnerable family members; (2) are subject to pandemic-related harassment, i.e., because they are or are perceived to be of Asian descent; (3) desire or request flexible work arrangements; (4) request an alternative method of COVID-19 screening due to a medical condition; (5) are at a higher risk of a severe case of COVID-19; (6) take advantage of telework, modified schedules or other benefits due to school closures or distance learning during the pandemic; and (7) are pregnant.

The EEOC emphasizes in the new guidance employers’ responsibilities to avoid violating federal anti-discrimination laws, while simultaneously providing employees opportunities to request reasonable accommodations and flexible work arrangements. A digest of the new guidance is below:  

  • Employers should address and prevent pandemic-related harassment (including against employees who are or are perceived to be Asian), even if that harassment takes place via email or by other virtual means.

The new guidance directs managers to 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. Managers should understand in advance how to recognize such harassment—especially where it occurs with the use of electronic communication tools—because harassment must be addressed regardless of whether employees are in the workplace, teleworking, or on leave, and even when it originates with contractors, customers or clients, or, for example, with patients or their family members at health care facilities, assisted living facilities, and nursing homes. Employers should treat virtual harassment the same as any other harassment. 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.

As a preventative measure, the new guidance encourages employers to send reminders to the entire workforce about discrimination policies. These reminders can be used to reiterate the prohibitions on harassment under Title VII, remind employees that harassment will not be tolerated, invite anyone who experiences or witnesses workplace harassment to report it to management, and affirm that harassment can result in disciplinary action up to and including termination.

Requests for accommodations

  • An employee is not entitled to an accommodation under the Americans with Disabilities Act (ADA) in order to avoid exposing a family member who, due to an underlying medical condition, is at higher risk of severe illness from COVID-19. 

The EEOC’s new guidance highlights that while the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. 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 they are associated.  Nevertheless, employers are free to provide flexible work arrangements (i.e., teleworking, etc.), as long as they do not engage in disparate treatment based on a protected classification or equal employment opportunity (EEO) basis.

  • Employers may invite employees to request flexibility in work arrangements before employees return to the workplace.

While emphasizing the importance of employers providing accommodations or flexible work arrangements to employees who may be at higher risk for severe illness, the new EEOC guidance sets forth a couple of options for employers to inform employees about requests for accommodations. 

Notice to all employees. The first option the EEOC proposes is a universal accommodations request notice to all employees, whether they are returning to the physical workplace or not. Under this option, employers would give all employees information in advance about whom to contact if they wish to request accommodation for a disability that they may need upon return to the workplace (regardless whether a date has been announced for their return). If requests are received in advance, employers can begin discussions with the employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. Employers using this option can give employees (a) a list of all CDC-identified medical conditions that may place people at higher risk of serious illness if they contract COVID-19; (b) instructions about whom to contact about an accommodation; and (c) a statement that employers are willing to consider accommodations requests from employees on a case-by-case basis.

Notice to employees designated to return to the workplace. The second option is a notice only to employees designated to return to the workplace. The EEOC recommends that this notice also state (a) that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis and (b) instructions about whom to contact about an accommodation, including whether the contact differs depending on the reason for the request (e.g., if employees with disabilities or pregnant workers should contact someone different than employees whose request is based on age or child-care responsibilities). 

Regardless of approach, the EEOC guidance instructs employers to make sure that the individual receiving accommodations inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

  • Where based on a medical condition, employers should treat a request for an alternative method of COVID-19 screening like any other request for a reasonable accommodation.

The new guidance provides that where based on a medical condition, requests for alternative methods of COVID-19 screening should be treated as any other accommodations request.  In other words, if the requested change is easy to provide and inexpensive, employers can voluntarily choose to make it available to anyone who asks. Alternatively, if the disability is not obvious or already known, the 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. (The guidance provides that “[a]n employer does not have to provide a reasonable accommodation that would cause an ‘undue hardship’ to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.”)

  • Requests to accommodate religious beliefs.

Religion-based requests, on the other hand, should be treated with more caution.According to the new guidance, if an employee requests an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

Age

  • Don’t involuntarily exclude employees age 65 and older from the workplace—even if to protect them from COVID-19.

The new EEOC guidance reminds employers that the Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. Prohibited discrimination under the ADEA includes involuntarily excluding an individual from the workplace based on his or her being 65 or older, even for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Employers should take note that while the ADEA does not include a right to reasonable accommodation for older workers due to age, employers are free under the ADEA to provide flexibility to workers age 65 and older, regardless if it results in younger workers ages 40-64 being treated less favorably based on age.

Sex/Pregnancy

  • Benefits to employees with school-age children due to school closures or distance learning are OK, as long as employees are not treated differently based on sex or other protected characteristics.

The new EEOC guidance confirms that employers can provide telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning.  Giving such benefits does not raise discrimination concerns as long as employers are not treating employees differently based on sex or other EEO-protected characteristics. 

  • Employers cannot involuntarily exclude pregnant employees from the workplace due to the pandemic, but pregnant employees may have a right to an accommodation.

The new guidance reiterates that prohibited sex discrimination under Title VII includes pregnancy-based discrimination. An employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough, even if the employer is doing so out of a benevolent concern to prevent COVID-19 exposure.

However, pregnant employees may have a right to a reasonable accommodation in the workplace.  First, under the ADA, pregnancy-related medical conditions may constitute disabilities, and employers must consider per the usual ADA rules any requests based on those conditions. Second, under the Pregnancy Discrimination Act, women affected by pregnancy, childbirth, and related medical conditions must be treated the same as others who are similar in their ability or inability to work. This means that 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. The new guidance instructs employers to make sure supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.  

If you have questions about the new EEOC guidance, or about other employment law matters, contact Wendy Stryker at (212) 705 4838 or wstryker@fkks.com, Tricia Legittino at (310) 579-9632 or tlegittino@fkks.com or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.