Businesses are beginning to regain their footing after closure due to the COVID-19 pandemic. As businesses work to reopen, employers must inevitably weigh their growing economic losses and public health concerns with shielding themselves from discrimination lawsuits.
Planning for Reopening
The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated its technical assistance publication to address important questions arising under discrimination laws related to the COVID-19 pandemic. In the latest update, the EEOC clarifies information on coronavirus testing, planning for reopening, accommodations and flexibility, and discrimination. For example, the Americans with Disabilities Act (“ADA”) strictly requires that any mandatory medical exams of employees be “job related and consistent with business necessity.” The EEOC has clarified that this standard permits employers to require COVID-19 testing, but does not allow them to require antibody testing before allowing employees to re-enter the workplace as it does not meet the “job related” criteria. (See Q&A A.7.) Employers may also screen applicants for COVID-19 and may postpone a new employee’s start date or withdraw an offer altogether if the individual has COVID-19 or is displaying symptoms of the virus.
Public health mandates serve to maintain the integrity of the health care system and protect especially vulnerable populations, such as individuals age 65 and over or pregnant. Accordingly, employers may want to take extra steps to protect these employees. To this end, the EEOC affirmed that employers are free to provide maximum flexibility to older employees even if younger employees are being treated less favorably in comparison. Job modifications, telework, or changes to work schedules and assignments are all acceptable options. In taking steps to protect pregnant employees, employers have the option to provide flexibility beyond what the law requires, notwithstanding disparate treatment on a protected EEO basis.
However, the EEOC warned that employers cannot bar elderly or pregnant workers from returning to the job site, even if the employer is trying to protect them from severe sickness. According to the Age Discrimination in Employment Act (“ADEA”), employers may not exclude anyone from the workplace because of age. Similarly, Title VII of the Civil Rights Act bars discrimination based on pregnancy. Therefore, companies cannot single out workers on the basis of either age or pregnancy and require them to stay home even if the reason for doing so is to protect the employee from being exposed because they are at a higher risk of contracting COVID-19. (See Q&A H.1.)
Accommodations & Flexibility
Due to a high number of inquiries, EEOC clarified that employers are not required to provide accommodations to protect an employee’s high-risk family member. For example, a non-disabled employee is not entitled under the ADA to telework as an accommodation to protect a disabled family member from potential COVID-19 exposure. (See Q&A D.13.) EEOC does encourage employers to invite employees to request flexibility in the workplace and suggests companies provide a notice prior to returning to work that includes all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provides instructions about who to contact, and explains that the employer is willing to consider on a case-by-case basis any requests for accommodations from employees who have these or other medical conditions.
The EEOC also reminds employers to be cognizant of sex discrimination considerations in offering telework, modified schedules, or other benefits to employees with school-age children. Specifically, female employees should not be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
Prevent & Address Harassment
Finally, the EEOC’s update provides crucial guidance on how employers should prevent and address an increasing level of harassment against employees who are or are perceived to be Asian. (See Q&A E.3.) For instance, businesses should be certain that management understands in advance how to recognize and report demeaning, derogatory, or hostile remarks directed to employees of Chinese or other Asian national origin. The EEOC reminds employers that harassment can occur electronically while teleworking in addition to in-person contact at the worksite and suggests sending a notice to the entire workforce noting the legal prohibition 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 also consider reminding the workforce that harassment can result in disciplinary action up to and including termination.
Guidance from public health authorities is likely to change as the pandemic evolves. Thus, employers should continue to follow EEOC updates in order to help to protect themselves from inadvertent violations of the law and the anticipated wave of COVID-19 lawsuits.