On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) updated its technical guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The Guidance is designed help employers navigate the unique employment issues raised by COVID-19. Below is a summary of the updated guidance:
- No Required Accommodation for Employees with High-Risk Family Members. Although the EEOC encourages employers to consider flexible arrangements with employees, Employers are not required to provide reasonable accommodations solely on the basis that an employee’s family member is at high-risk of severe illness if they contract COVID-19.
- Employers’ Obligation to Stop Harassment Based on Race or National Origin – Even Remotely. The EEOC’s guidance makes clear that an employer’s obligation to address harassment or discrimination is not limited to the physical workplace. An employer who becomes aware that an employee is the subject of harassment or discrimination through electronic means or otherwise is still obligated to put an end to the conduct.
- Employers Permitted to Seek Reasonable Accommodation and Other Flexible Arrangements Before Employees Return to Work. Employers do not have to wait until employees formally return to the workplace to engage with them about possible accommodations or other flexible arrangements that an employee may require. The EEOC suggests that employers send a notice to all employees noting that the employer will consider accommodations and, if the employer chooses, other flexible arrangements (g., alternative schedules to accommodate childcare needs). Any provision of flexible arrangements must be applied in a non-discriminatory manner.
- Employers May Have a Duty to Modify Employee Screening Programs. As employees return to the workplace, many employers are implementing mandatory screening programs to protect against the spread of COVID-19. However, even where such programs are based on state mandates, an employer may still have an obligation to provide disability or religious accommodations to an employee. Such accommodation requests should be treated the same as any other request for accommodation.
- Employers Cannot Involuntarily Exclude Employees Age 65 years and Over from the Workplace: Although the CDC has identified individuals age 65 and over as high-risk of serious illness if they contract COVID-19, an employer may not involuntarily exclude the employee from the workplace on that basis alone – even if the employer’s decision is premised on a concern for the employee’s health and safety. In addition, an employer may have an affirmative obligation to provide a reasonable accommodation to the employee if they have underlying medical condition that constitutes a disability.
- Employers Cannot Involuntarily Exclude Pregnant Employees from the Workplace. Even where an employer has benevolent concern for an employee’s health and safety, the employer is not permitted to exclude an employee (or otherwise take an adverse employment action) on the basis of pregnancy. An employer may also have an affirmative duty to provide an accommodation to a pregnant employee where the employee has a pregnancy-related medical condition that constitutes a disability.
We anticipate that the EEOC will continue to update its guidance as novel employment issues emerge in the wake of the health pandemic. If you have further questions about the EEOC Guidance or other labor & employment issues related to COVID-19, feel free to contact Jeffery Wells at JWells@williamskastner.com or visit our COVID-19 Resource Center Page.