The US Equal Employment Opportunity Commission (EEOC) issued its most recent round of Q&As on June 11 offering guidance to employers on the Americans with Disabilities Act (ADA) and other equal employment opportunity laws during the coronavirus (COVID-19) crisis. Among other things, EEOC addressed issues regarding older workers, pregnant workers, harassment of Asian workers, and accommodations.
Perhaps most importantly, EEOC addressed questions regarding the rights of employees over the age of 65. First, EEOC made clear that an employer may not “involuntarily” exclude an employee from the workplace simply because the employee is over the age of 65 – even though the Centers for Disease Control and Prevention (CDC) has said that such individuals are at greater risk for severe illness if they contract COVID-19, and even if the motivating rationale is to keep the employee safe. EEOC explained that excluding people from the workplace on the basis of age violates the Age Discrimination in Employment Act (ADEA). And unlike the ADA, which might allow an employer to exclude an employee with a disability from the workplace after the employer engages in an individualized assessment to determine if the employee poses a direct threat to him- or herself, the ADEA provides no such affirmative defense to an employer.
In addition, EEOC stated that an employer is not legally required to provide an accommodation to a person over the age of 65, even though that person may be at higher risk of severe illness. Unlike the ADA, the ADEA does not have an explicit reasonable accommodation requirement. However, EEOC explained that the ADEA would not preclude an employer from granting alternative workplace arrangements to employees over the age of 65, even if the employer did not provide such arrangements to employees between the ages of 40 and 65. That is because the ADEA not only permits employers to favor employees over 40, as compared to those under 40, but an employer may also treat employees in the upper age levels of the protected range (40 and above) better than those in the lower age levels.
EEOC also provided guidance on the rights of pregnant workers. It explained that an employer may not exclude an employee from the workplace involuntarily due to pregnancy, even if the employer wants to do so in order to protect the employee, as that would violate Title VII of the Civil Rights Act. EEOC further explained that an employer is required to provide reasonable accommodations to pregnant women, both under the Pregnancy Discrimination Act, if the employer provides accommodations to individuals “similar in their ability or inability to work,” and under the ADA, if the employee has a pregnancy-related medical condition.
EEOC also explained that:
Given the EEOC guidance, there are a number of steps employers can take to address employee requests for accommodations and alternative workplace arrangements.
An employer must provide reasonable accommodations to people who need them because of disability, pregnancy, or religion unless providing the accommodation would pose an undue hardship. For example, an employer should allow an employee at higher risk of severe illness if they contract COVID-19, either because of an underlying health risk or pregnancy, to telework if the job can be performed from home. Similarly, an employer should provide a temperature screener of the same gender if an employee’s religion necessitates that accommodation and doing so would not pose an undue hardship for the employer.
There are other classes of people who also might need alternative workplace arrangements, even if an employer is not legally required to provide such arrangements. (We prefer using the term “alternative workplace arrangements” to describe changes made for classes of such individuals, to distinguish such arrangements from “reasonable accommodations” that are legally required to be provided to other classes of employees.) This includes people over the age of 65, people who live with people who are at higher risk of severe illness if they contract COVID-19, and people with childcare and/or elder care responsibilities.
For these classes of employees, employers should decide what their policies are going to be, and they should be sure to apply their policies consistently. Employers can choose to provide alternative workplace arrangements for anyone who needs them, or they can, for example, decide to provide alternative workplace arrangements only for those who are at high risk because they are over the age of 65, or only for those who live with others who are at high risk.
It is important that these policies be communicated to anyone with supervisory or decisionmaking authority, such as managers or HR personnel, so that the requests are handled properly and in a consistent fashion.
Finally, information about these policies should be shared with all employees, including who to contact to request an accommodation/alternative arrangement and what documentation will be required. Employers should consider notifying employees as part of the return to work process of the availability of reasonable accommodations or alternative work arrangements, even if a specific return date has not yet been announced.
EEOC issued additional guidance on June 17 addressing the legality of serology (i.e., antibody) testing under the ADA, and it explained that employers cannot require employees to take such tests as a condition of being allowed to return to the workplace. EEOC determined that based on the current science, serology tests are not job-related and consistent with business necessity. EEOC’s analysis is based on CDC guidance, which states that “serologic test results should not be used to make decisions about returning persons to the workplace.” The EEOC has said that it will be closely monitoring any additional CDC recommendations and may update its analysis based on new developments and recommendations from the CDC.
This guidance is different from EEOC’s earlier guidance on molecular (diagnostic) tests, which test for the presence of COVID-19 itself, rather than antibodies produced in response to the virus. In EEOC’s earlier guidance, it explained that diagnostic tests are legally permissible under the ADA, because they screen for individuals who are currently infected with the virus and may pose a direct threat in the workplace.
Most of what the EEOC has said is not new. But employers are entering a brave new world as they begin to bring their employees back to work. The EEOC’s guidance provides helpful direction on how to apply existing law to new circumstances. Such guidance benefits both employers and employees.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Sharon P. Masling