BFV Perspectives, Covid-19 Updates, Navigating HR, | Jun 12, 2020

EEOC Updates Guidance on Challenging COVID-19 Reopening Issues

The U.S. Equal Employment Opportunity Commission (“EEOC”) has posted an updated and expanded technical assistance publication addressing employment questions related to the COVID-19 pandemic.

The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” provides approaches employers may adopt as they plan for employees to return to the workplace. The EEOC has provided periodic updates to this guidance as the COVID-19 crisis has evolved and new legal questions have arisen. 

The most recent update focuses on several challenging issues employers are facing as they try to recall employees back to work – namely, how to handle employees who may be at higher risk of contracting COVID-19 or exposing family members to the virus.

Fears of Exposing Higher Risk Family Members
One of the most common concerns of employees who are afraid to return to work is their concern about exposing higher risk family members to COVID-19. The EEOC explains in a Q&A that the Americans with Disabilities Act (“ADA”) does not require that an employer accommodate an employee without a disability based on risks associated with a family member or other person with whom the employee is associated:

D.13.  Is an employee entitled to an accommodation under the 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? (6/11/20)
No.  Although 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 she is associated. 

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. 

Of course, an employer is free to provide such flexibilities if it chooses to do so.  An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

Asking Employees about Future Accommodation Needs
There has been a lot of confusion about whether employers may legally ask their employees if they will need any type of accommodation when they return to work. Normally, there are strict limitations on what medically-related questions an employer may ask.  However, because COVID-19 is considered to be a direct threat to employee safety, the EEOC has loosened its rules in several ways. The EEOC has previously explained that an employer may ask about needed accommodations before the employee returns to work: 

D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)
Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

In its updated guidance the EEOC provides further guidance on the subject of anticipated accommodations:
G.6.  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? (6/11/20)
Yes. The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who 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.  If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. 

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives 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.

Excluding Older Workers
Public health officials have cautioned that workers age 65 and over are in an age group that is at an increased risk of severe COVID-19 illness. Employers must understand, however, that they cannot lawfully “involuntarily” exclude older workers, even if they are acting “for benevolent reasons such as protecting the employee” according to the EEOC:

H.1.  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? (6/11/20)
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older.  The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer 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.  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. 

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities.  As such, they may request reasonable accommodation for their disability as opposed to their age.

New employment challenges continue to arise as employers seek to resume operations. In response, regulatory agencies such as the EEOC are constantly providing new guidance and updates.  Employers should familiarize themselves with the EEOC’s latest guidance and continue to monitor regulatory developments to ensure compliance and best practices.

BFV Perspectives, Covid-19 Updates, Navigating HR, | Jun 12, 2020
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.