Readying For The Return: More EEOC Guidance Comes Down The Pipeline For Employers

As employers across the country are re-opening or preparing to re-open their “doors,” federal agencies are continuing to issue guidance in light of the unique challenges presented by the COVID-19 pandemic.  As we previously reported, the Equal Employment Opportunity Commission (“EEOC”) has published regular guidance regarding employees returning to the workplace.

On June 11, 2020, the EEOC issued additional Technical Assistance Questions and Answers for employers regarding the application of various non-discrimination laws to the new nature of the workplace.  The majority of this guidance, which is summarized below, focuses upon an employer’s duty, or lack thereof, to accommodate employees returning to the physical workplace.

• The guidance acknowledges that employees age 65 and over are at a higher risk for contracting a severe illness from COVID-19. That being said, employers are prohibited from “involuntarily excluding an individual from the workplace based on [their] being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to the higher risk of severe illness from COVID-19.”  Therefore, employers should not prohibit older workers from returning to the workplace based on their age.
• Significantly, the EEOC notes that employers may provide greater flexibility to older workers under the Age Discrimination in Employment Act (“ADEA”) , even if this results in younger employees being treated less favorably based on their age.
• The guidance provides that the ADEA does not require employers to reasonably accommodate employees due to age. As such, an employer is not required to grant an employee’s accommodation request simply because the employee is 65 years old or over.  However, the guidance notes that workers who are age 65 and older may have medical conditions that must be reasonably accommodated pursuant to the Americans with Disabilities Act (“ADA”).
• According to the EEOC, “[a]s a best practice,” employers may invite employees to request flexibility in work arrangements by: (1) sending information in advance to all employees, even if no official return date has been scheduled or (2) issuing such information to only those employees who are designated to return to the workplace.
  • Regardless of either method, the employer “may choose” to include the following information in the distributed notice to employees: (1) the medical conditions that place people at higher risk for serious illness due to COVID-19 as determined by the Centers for Disease Control and Prevention (“CDC”); (2) the name and contact information for a designated employee (or multiple employees) to receive such accommodation requests; and (3) a statement that the employer is “willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.”
• Significantly, the guidance confirms that employers are not required under the ADA to accommodate an employee based on the employee’s family member’s underlying condition that places the family member at a higher risk for serious illness from COVID-19. Therefore, an employee who has a high risk family member is not entitled to any accommodation from his or her employer in returning to the workplace.
• Pursuant to the guidance, employees are permitted to request an alternative method of screening due to religion or a medical condition, which should be treated as a request for reasonable accommodation under the ADA or Title VII of the Civil Rights Act. An employer is permitted to request medical documentation to support the employee’s request.
• The EEOC provides that employers cannot involuntarily exclude pregnant employees from returning to the workplace or take any adverse employment action against a pregnant employee, even if motivated by benevolent reasons.
• The guidance clearly provides that employers may provide flexibility to employees with school-age children, so long as such benefits are not provided solely to female employees because of an “assumption about who may have caretaking responsibilities for children.”
• Finally, the updated guidance emphasizes that 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.” Further, managers should be trained in how to recognize such harassment, regardless of whether the harassment occurs on-site or through electronic communication tools.  To attempt to prevent such harassment, the EEOC states that employers may choose to issue an anti-harassment statement to all employees, which invites anyone who experiences or witness workplace harassment to lodge a complaint.

Employers should adhere to the new EEOC guidance, along with all of the previously issued guidance, to comply with applicable non-discrimination and accommodation obligations.  As the guidance is subject to change, employers should continue to stay abreast of any new developments.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.