June.12.2020
On June 11, the U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its compendium FAQs on COVID-19 and the workplace. The latest revisions provide additional guidance on non-discrimination obligations under various federal non-discrimination laws as employees return to work. We previously blogged about the agency’s FAQ guidance here.
Two of the new FAQs address harassment in the COVID-19 context. Addressing an uptick in racism directed at Asian employees due to COVID-19, the first FAQ notes that “[m]anagers should 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.” To ensure that employees come forward with complaints regarding such harassment, “[e]mployers may choose to send a reminder to the entire workforce noting 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. Employers may remind employees that harassment can result in disciplinary action up to and including termination.”
A second FAQ notes more generally that employers should handle remote, electronic harassment the same way as any in-person harassment under federal non-discrimination laws. Accordingly, “[e]mployees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration.”
Many of the new FAQs are devoted to clarifying employer obligations under the Americans with Disabilities Act (“ADA”). The ADA requires employers to engage in an interactive process when employees request a reasonable accommodation based on a covered disability. Reasonable accommodations depend on the circumstances, including the job the employee performs and the physical characteristics of the workspace. Previous EEOC guidance has underscored the importance of responding to requests for accommodation that may arise as a result of COVID-19, including serious complications that infected employees may experience.
The new FAQs provide that the ADA allows but does not require employers to provide information about requesting a reasonable accommodation to all employees returning to the workplace. A notice can specify the underlying medical conditions that, based on CDC guidance, may place employees at greater risk of serious complications from COVID-19. An interactive dialogue about needed accommodations can begin even before an employer announces a firm return-to-work date.
Under another new FAQ, the EEOC notes that the ADA may require employers to provide alternative health and other information screening methods for employees entering the worksite based on an employee’s disability or disabilities. Separately, under Title VII, employers may also be required to provide alternative screening methods based on requests for religious accommodation. Finally, “[t]he 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.” As a result, an employer does not have to accommodate a work-from-home request, for example, based on fear that that an employee may contract COVID-19 at work and later transmit the virus to a vulnerable family member.
An additional new FAQ also notes that the Age Discrimination in Employment Act (“ADEA”) does not require employers to provide reasonable accommodations based on an employee’s age. However, employers must provide reasonable accommodations for older workers with covered medical conditions under the ADA. In addition, the ADEA permits employers to provide flexibility for older workers “even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.” Employers may therefore consider allowing older workers to, for example, work remotely for an extended period of time.
A new FAQ on caregiver responsibilities, provides that flexibility cannot be granted to employees based on a particular protected characteristic. As an example, an employer cannot, under Title VII, allow only female employees to work from home due to childcare obligations. The FAQs do not address policies that allow any caregiver to request scheduling modifications, and such policies may be permissible when appropriately drafted and uniformly applied.
The guidance also notes that, under the Pregnancy Discrimination Act, employers cannot exclude pregnant workers from the workplace based solely on concern about their health and welfare in connection with the COVID-19 pandemic. Similarly, an employer cannot refuse to offer a pregnant employee any job modification(s), such as flexible scheduling, that it already offers to other employees. Pregnant employees may, however, be entitled to an accommodation based on a pregnant-related medical condition under the ADA. Employers should therefore engage in an interactive process regarding any pregnancy-related accommodations request, and otherwise provide job modifications and other flexibilities that are available to all workers under existing policies.
Although the revised FAQs do not create any strictly new obligations for employers, they do reinforce the importance of observing federal non-discrimination provisions as worksites reopen for business. Many state and local jurisdictions have released additional (and perhaps conflicting) guidance and orders on the same topics. Some of those differences between the EEOC guidance and state and local guidance will be explored in a subsequent blog. Employers should therefore consult with counsel knowledgeable about these differing requirements in developing return to work policies that comply with the above guidance and various other federal, state, and local requirements.