The purpose of this alert is to address the EEOC’s most recently updated guidance. Additional discussion of prior EEOC guidance is available here, here, and here.
Pandemic-Related Harassment Against Employees who are or are Perceived to be Asian
The EEOC has recognized that employees who are or are perceived to be of Chinese or another Asian national origin may be the targets of pandemic-related workplace harassment. The EEOC cautions employers to ensure that its management understands in advance how to recognize this type of harassment—which may occur even during telework—and resolve potential issues “before they rise to the level of unlawful discrimination.” Employers may wish to send a reminder to the entire workforce noting that harassment will not be tolerated and invite employees who experience such harassment to report it to management. Of course, such reports should be treated diligently, and appropriate discipline should be used in cases of harassment.
Reasonable Accommodations and Flexibility in Work Arrangements
The EEOC clarified that employers are permitted to make preemptive announcements to employees inviting employees to inquire about disability accommodations before returning to work (even if a return-to-work date has not been set). The Americans with Disabilities Act (ADA) and the Rehabilitation Act permit an employer to make information available, in advance, to all employees regarding the procedure to request an accommodation for a disability that they may need upon return to the workplace, even if no return date has been announced. Employers may also target just those employees designated to return for this announcement. If an advance request for accommodation is made, the employer may begin the interactive process without waiting for a return to work. Any request for accommodation should be treated in the normal course under the ADA or rehabilitation act.
Older Workers May Not Be Barred from Returning to Work
Although the Centers for Disease Control has cautioned that individuals age 65 and older are at higher risk for a severe case of COVID-19 if they contract the virus, the EEOC cautions that the Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. Thus, under the ADEA, employers may not involuntarily exclude workers from the workplace based on their age, even if the employer believes it is acting for “benevolent reasons.” That said, employers may still consult with ADEA-covered employees and provide additional flexibility, such as telework if the employee desires such an arrangement. If the employee has a medical issue or disability and requires accommodation, that would be covered under the ADA.
The EEOC reminds employers that they are free to provide workplace flexibility to their employees, but that employers may not treat employees “differently based on sex or other EEO-protected characteristics.” Specifically, under Title VII, “female employees cannot be given more favorable treatment than male employees based on a gender-based assumption [that may or may not even be correct] about who may have caretaking responsibilities for children.”
Pandemic-Related Pregnancy Discrimination
Employers are not permitted to involuntarily exclude pregnant employees from the workplace, even if the employer believes it is acting based on the “benevolent concern” of the employee. However, employees with pregnancy-related medical conditions may be covered under the ADA and may obtain a reasonable accommodation thereunder.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Co-authors Jonathan Krause, partner and Gregory Sellers, associate are members of the labor and employment practice group at Klehr Harrison.