I have talked about the EEOC and Covid-19 guidelines that have been coming out from time to time before here, here, and here. On June 11, the EEOC came out with some more questions. Assuredly, my fellow employment law bloggers-such as Robin Shea, Eric Meyer, and Jon Hyman will probably have something to say on the subject, and I know Eric already has-, but I thought I would add my own views here. Since the EEOC lets you know by date when the question and the answer has been posted, we know just what are the latest questions and answers put out by the EEOC. So, there is no need to address the entire document. The new questions are: D .13; E .3; E .4; G .6; G .7; H .1; I .1; J .1; and J .2. The way this blog entry will work is that I will list EEOC question and answer. After that, I will give my thoughts/takeaways.
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.
Thought/Takeaways: Absolutely true that association discrimination does not provide for reasonable accommodations to the person associating with a person with a disability. However, failure to engage in the interactive process to try to work something out may indicate discriminatory intent upon the part of the employer. There is no reason why an employer can’t go beyond what the law allows. Previously, the EEOC has said that the pandemic demands more flexibility. So, failing to accommodate individuals who associate with a person with a disability may cost you an excellent employee. Depending upon whether you try to work something out first, it may also indicate discriminatory intent. So, why not try and work something out? Finally, if you are going to go beyond the floor of the ADA by allowing accommodations for people who associate with high risk individuals for Covid-19, be sure to offer that opportunity to every one of your employees.
E.3. How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian? (6/11/20)
Managers 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.
All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment. Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite. Harassment of employees at the worksite may also originate with contractors, customers or clients, or, for example, with patients or their family members at health care facilities, assisted living facilities, and nursing homes. 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.
Employers 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.
Thoughts/takeaways: Keep in mind, hostile work environment has been held to extend to persons with disabilities as well. I can definitely see backlash against people with underlying conditions that are getting certain accommodations that other people are not getting because they have been called back to the physical site. I also could see similar backlash against people who associate with those with underlying conditions particularly where the employer goes beyond the ADA floor and offers accommodation to those individuals. Finally, it wouldn’t surprise me for people to not understand what are the risk of associating with someone who has already had Covid-19. It is entirely possible that some people may be alarmed by associating with people who have had it already.
E.4. 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? (6/11/20)
The employer should take the same actions it would take if the employee was in the workplace. Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration.
Thought/Takeaways: No argument here.
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 process67. 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 guidance68 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.
Thought/Takeaways: An employer is obligated to begin the interactive process once they have reason to know that an accommodation might be needed. Magic words are not required. Much of paragraph 1 of this section assumes an environment where people with disabilities feel comfortable disclosing their disability. Those environments, as we discussed in this blog entry, are unfortunately few and far between. Absolutely agree that employees need to know where to go to begin any accommodation process. Finally, employees receiving inquiries either need to know how to handle those inquiries themselves with or without legal counsel or they need to direct the inquiries to somebody who can handle those inquiries with or without legal counsel. For example, if you take federal funds and have 15 or more employees, you must have a §504 coordinator and a §504 grievance procedure. If you are a title II entity and have 50 or more employees, you have to have an ADA coordinator and an ADA grievance procedure. As a matter of preventive law, it is a good idea to have an ADA/§504 coordinator and an ADA/§504 grievance procedure regardless. The ADA/§504 coordinator doesn’t necessarily have to be knowledgeable on ADA/§504 matters. It is certainly helpful if they are. If they are not, they need to know who can handle such requests and who can get the requests resolved with or without legal counsel.
G.7. What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition? (6/11/20)
This is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act. If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability69 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.
Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.
Thought/Takeaways: As mentioned above, magic words are not required. Handle a request for Covid-19 based reasonable accommodations just like you would any other request for reasonable accommodation.
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 disability72 as opposed to their age.
Thought/Takeaways: It is absolutely true that employers are free to provide flexibility to workers age 65 and older. However, that flexibility should be offered to all your employees. Also, don’t forget that with the amendments to the ADA it isn’t all that difficult for person to have an ADA protected disability. Remember, magic words are not required to begin the interactive process.
I. Caregivers/Family Responsibilities
I.1. 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? (6/11/20)
Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
Thought/Takeaways: If you are providing flexibility for your employees, make sure you are offering that flexibility to everyone and not just favoring one group of individuals.
J.1. Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy74? (6/11/20)
No. Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.
Thought/Takeaways: No argument. This has been the law for many many years.
J.2. Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)
There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy75.
First, pregnancy-related medical conditions may themselves be disabilities 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.
Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions 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. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
Thoughts/Takeaways: Per Young v. UPS, you want to put on your ADA reasonable accommodation hat whenever dealing with women affected by pregnancy, childbirth, and related medical conditions.