This morning, the EEOC updated its guidance on complying with the ADA and other employment laws during the pandemic and has even included FAQ about issues employers will encounter. Here are the new FAQ added on this morning:
D.13. Is an employee entitled to an
accommodation under the ADA in order to avoid exposing a family member who is
at higher risk of severe illness from COVID-19 due to an underlying medical
condition? (6/11/20)
No. Although the ADA
prohibits discrimination based on association with an individual with a
disability, that protection is limited to disparate treatment or
harassment. The ADA does not require that an employer accommodate an
employee without a disability based on the disability-related needs of a family
member or other person with whom she is associated.
For example, an employee
without a disability is not entitled under the ADA to telework as an
accommodation in order to protect a family member with a disability from
potential COVID-19 exposure.
Of course, an employer is
free to provide such flexibilities if it chooses to do so. An employer
choosing to offer additional flexibilities beyond what the law requires should
be careful not to engage in disparate treatment on a protected EEO basis.
E.3. How may employers respond to
pandemic-related harassment, in particular against employees who are or are
perceived to be Asian? (6/11/20)
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.
All employers covered by
Title VII should ensure that management understands in advance how to recognize
such harassment. Harassment may occur using electronic communication
tools – regardless of whether employees are in the workplace, teleworking, or
on leave – and also in person between employees at the worksite.
Harassment of employees at the worksite may also originate with contractors,
customers or clients, or, for example, with patients or their family members at
health care facilities, assisted living facilities, and nursing homes.
Managers should know their legal obligations and be instructed to quickly identify and resolve
potential problems, before they rise to the level of unlawful discrimination.
Employers may choose to send
a reminder to the entire workforce noting Title VII’s prohibitions 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 remind employees that harassment can result
in disciplinary action up to and including termination.
E.4.
An employer learns that an employee who is teleworking due to the pandemic is
sending harassing emails to another worker. What actions should the
employer take? (6/11/20)
The employer should take the
same actions it would take if the employee was in the workplace. Employees
may not harass other employees through, for example, emails, calls, or
platforms for video or chat communication and collaboration.
G.6. As a best practice, and in
advance of having some or all employees return to the workplace, are there ways
for an employer to invite employees to request flexibility in work
arrangements? (6/11/20)
Yes. The ADA and the
Rehabilitation Act permit employers to make information available in advance to
all
employees about who to contact – if they wish – to request accommodation for a
disability that they may need upon return to the workplace, even if no date has
been announced for their return. If requests are received in advance, the
employer may begin the interactive process. An employer may choose to
include in such a notice all the CDC-listed medical conditions that may place
people at higher risk of serious illness if they contract COVID-19, provide
instructions about who to contact, and explain that the employer is willing to
consider on a case-by-case basis any requests from employees who have these or
other medical conditions.
An employer also may send a
general notice to all employees who are designated for returning to the
workplace, noting that the employer is willing to consider requests for
accommodation or flexibilities on an individualized basis. The employer should
specify if the contacts differ depending on the reason for the request – for
example, if the office or person to contact is different for employees with
disabilities or pregnant workers than for employees whose request is based on
age or child-care responsibilities.
Either approach is consistent
with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of
employers providing accommodations or flexibilities to employees who, due to
age or certain medical conditions, are at higher risk for severe illness.
Regardless of the approach,
however, employers should ensure that whoever receives inquiries knows how to
handle them consistent with the different federal employment nondiscrimination
laws that may apply, for instance, with respect to accommodations due to a
medical condition, a religious belief, or pregnancy.
G.7.
What should an employer do if an employee entering the worksite requests an
alternative method of screening due to a medical condition? (6/11/20)
This is a request for
reasonable accommodation, and an employer should proceed as it would for any
other request for accommodation under the ADA or the Rehabilitation Act.
If the requested change is easy to provide and inexpensive, the employer might
voluntarily choose to make it available to anyone who asks, without going
through an interactive process. Alternatively, if the disability is not obvious
or already known, an employer may ask the employee for information to establish
that the condition is a disability and what specific limitations
require an accommodation. If necessary, an employer also may request medical
documentation to support the employee’s request, and then determine if that
accommodation or an alternative effective accommodation can be provided, absent
undue hardship.
Similarly, if an employee
requested an alternative method of screening as a religious accommodation, the
employer should determine if accommodation is available under Title VII.
H.1. The CDC has explained that individuals age 65 and
over are at higher risk for a severe case of COVID-19 if they contract the
virus and therefore has encouraged employers to offer maximum flexibilities to
this group. Do employees age 65 and over have protections under the
federal employment discrimination laws? (6/11/20)
The Age Discrimination in
Employment Act (ADEA) prohibits employment discrimination against individuals
age 40 and older. The ADEA would prohibit a covered employer from
involuntarily excluding an individual from the workplace based on his or her
being 65 or older, even if the employer acted for benevolent reasons such as
protecting the employee due to higher risk of severe illness from COVID-19.
Unlike the ADA, the ADEA does
not include a right to reasonable accommodation for older workers due to
age. However, employers are free to provide flexibility to workers age 65
and older; the ADEA does not prohibit this, even if it results in younger
workers ages 40-64 being treated less favorably based on age in
comparison.
Workers age 65 and older also
may have medical conditions that bring them under the protection of the ADA as
individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed
to their age.
I.1. If an employer provides
telework, modified schedules, or other benefits to employees with school-age
children due to school closures or distance learning during the pandemic, are
there sex discrimination considerations? (6/11/20)
Employers may provide any flexibilities
as long as they are not treating employees differently based on sex or other
EEO-protected characteristics. For example, under Title VII, female
employees cannot be given more favorable treatment than male employees because
of a gender-based assumption about who may have caretaking responsibilities for children.
J.1. Due to the pandemic, may an
employer exclude an employee from the workplace involuntarily due to pregnancy? (6/11/20)
No. Sex discrimination
under Title VII of the Civil Rights Act includes discrimination based on
pregnancy. Even if motivated by benevolent concern, an employer is not
permitted to single out workers on the basis of pregnancy for adverse
employment actions, including involuntary leave, layoff, or furlough.
J.2.
Is there a right to
accommodation based on pregnancy during the pandemic? (6/11/20)
There are two federal
employment discrimination laws that may trigger accommodation for employees based on pregnancy.
First, pregnancy-related
medical conditions may themselves be disabilities under the ADA, even though
pregnancy itself is not an ADA disability. If an employee makes a request
for reasonable accommodation due to a pregnancy-related medical condition, the
employer must consider it under the usual ADA rules.
Second, Title VII as amended
by the Pregnancy Discrimination Act specifically requires that women affected
by pregnancy, childbirth, and related medical conditions be treated the same as
others who are similar in their ability or inability to work. This means
that a pregnant employee may be entitled to job modifications, including
telework, changes to work schedules or assignments, and leave to the extent provided
for other employees who are similar in their ability or inability to work.
Employers should ensure that supervisors, managers, and human resources
personnel know how to handle such requests to avoid disparate treatment in
violation of Title VII.
In case you missed it, the EEOC also added other questions in May:
G.4.
The CDC identifies a number of medical conditions that might place individuals
at “higher risk for severe illness” if they get
COVID-19. An employer knows that an employee has one of these conditions
and is concerned that his health will be jeopardized upon returning to the
workplace, but the employee has not requested accommodation. How does the
ADA apply to this situation? (5/7/20)
First, if the employee does
not request a reasonable accommodation, the ADA does not mandate that the
employer take action.
If the employer is concerned
about the employee’s health being jeopardized upon returning to the workplace,
the ADA does not allow the employer to exclude the employee – or take any other
adverse action – solely
because the employee has a disability that the CDC identifies as potentially
placing him at “higher risk for severe illness” if he gets COVID-19.
Under the ADA, such action is not allowed unless the employee’s disability
poses a “direct threat” to his health that cannot be eliminated or reduced by
reasonable accommodation.
The ADA direct threat
requirement is a high standard. As an affirmative defense, direct threat
requires an employer to show that the individual has a disability that poses a
“significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r) (regulation
addressing direct threat to health or safety of self or others). A direct
threat assessment cannot be based solely on the condition being on the CDC’s
list; the determination must be an individualized assessment based on a
reasonable medical judgment about this employee’s disability – not the
disability in general – using the most current medical knowledge and/or on the
best available objective evidence. The ADA regulation requires an employer to
consider the duration of the risk, the nature and severity of the potential
harm, the likelihood that the potential harm will occur, and the imminence of
the potential harm. Analysis of these factors will likely include
considerations based on the severity of the pandemic in a particular area and
the employee’s own health (for example, is the employee’s disability
well-controlled), and his particular job duties. A determination of
direct threat also would include the likelihood that an individual will be
exposed to the virus at the worksite. Measures that an employer may be
taking in general to protect all workers, such as mandatory social distancing,
also would be relevant.
Even if an employer
determines that an employee’s disability poses a direct threat to his own
health, the employer still cannot exclude the employee from the workplace – or
take any other adverse action – unless there is no way to provide a reasonable
accommodation (absent undue hardship). The ADA regulations require an
employer to consider whether there are reasonable accommodations that would
eliminate or reduce the risk so that it would be safe for the employee to
return to the workplace while still permitting performance of essential
functions. This can involve an interactive process with the employee.
If there are not accommodations that permit this, then an employer must
consider accommodations such as telework, leave, or reassignment (perhaps to a
different job in a place where it may be safer for the employee to work or that
permits telework). An employer may only bar an employee from the
workplace if, after going through all these steps, the facts support the
conclusion that the employee poses a significant risk of substantial harm to
himself that cannot be reduced or eliminated by reasonable accommodation.
G.5.
What are examples of accommodation that, absent undue hardship, may eliminate
(or reduce to an acceptable level) a direct threat to self? (5/5/20)
Accommodations may include additional or
enhanced protective gowns, masks, gloves, or other gear beyond what the
employer may generally provide to employees returning to its workplace.
Accommodations also may include additional or enhanced protective measures, for
example, erecting a barrier that provides separation between an employee with a
disability and coworkers/the public or increasing the space between an employee
with a disability and others. Another possible reasonable accommodation
may be elimination or substitution of particular “marginal” functions (less
critical or incidental job duties as distinguished from the “essential”
functions of a particular position). In addition, accommodations may
include temporary modification of work schedules (if that decreases contact
with coworkers and/or the public when on duty or commuting) or moving the
location of where one performs work (for example, moving a person to the end of
a production line rather than in the middle of it if that provides more social
distancing).
These are only a few
ideas. Identifying an effective accommodation depends, among other
things, on an employee’s job duties and the design of the workspace. An
employer and employee should discuss possible ideas; the Job Accommodation
Network (www.askjan.org)
also may be able to assist in helping identify possible accommodations. As
with all discussions of reasonable accommodation during this pandemic,
employers and employees are encouraged to be creative and flexible.
