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June 16, 2020

Stroock Special Bulletin

By: Howard S. Lavin, Elizabeth E. DiMichele

On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) updated its ongoing guidance with answers to important questions about compliance with the Americans with Disabilities Act (ADA) and other federal anti-discrimination laws as states lift stay-at-home orders and employees return to workplaces.

In this client alert, we summarize the EEOC’s recent answers to several pressing employer questions.

Can Employers Involuntarily Exclude High-Risk Individuals From the Workplace?

No.  The Centers for Disease Control and Prevention (CDC) has identified certain individuals as being at greater risk of severe complications from COVID-19 than the general public, including those who are over the age of 65 and, potentially, pregnant women. The EEOC has stated unequivocally that even if motivated by benevolent concerns, federal anti-discrimination laws, such as the Age Discrimination in Employment Act (ADEA), and Title VII of the Civil Rights Act of 1964 (Title VII) protect employees over the age of 65 and pregnant employees from adverse employment actions such as involuntary leave, furlough or layoff.

Can Employers Provide Accommodations or Flexibility to High-Risk Employees?
 
Yes. Employers are encouraged to provide flexibility to employees at high risk and, under certain circumstances, have affirmative obligations to provide reasonable accommodations.

Older Workers

The EEOC noted that while older workers do not have a right to reasonable accommodation under the ADEA, employers are permitted to provide flexibility to workers over the age of 65 who request it. The EEOC advises that such flexibility would not violate the ADEA, “even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.” In this regard, employers should always be cognizant of state and local laws, which may provide greater protections.  

For example, New York City law protects all workers from discrimination on the basis of age, and New York State law protects employees who are age 18 and above from employment discrimination. Employers should also consider that an older worker may have a right to a reasonable accommodation under the ADA if he or she also suffers from a medical condition.  

Pregnant Employees

Pregnant employees have a right to reasonable accommodations under two distinct federal laws. While pregnancy is not a disability under the ADA, certain pregnancy-related medical conditions may be, and employers must consider requests for reasonable accommodations under applicable ADA rules. 

In addition, under Title VII, as amended by the Pregnancy Discrimination Act, a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave, to the extent such modifications are provided to other employees who are similar in their ability or inability to work.  

Is an Employee Entitled to an Accommodation Under the ADA to Avoid Exposing a High-Risk Household Member to COVID-19? 

No. The ADA does not require that an employer accommodate an employee without a disability because of his or her relationship to a person with a disability. “For example, an employee that does not have 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.”

Again, employers are free to offer benefits beyond what the law requires, provided that they do so in a non-discriminatory manner that is consistent with anti-discrimination laws.

What Type of Flexibility Can Be Provided to Employees With School Age Children Consistent With Federal Anti-Discrimination Laws?

The EEOC made clear that “[e]mployers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEOC-protected characteristics.” In other words, male employees should not be denied telework, flexible schedules or other benefits that are provided to female employees based upon gender-based assumptions about who has caretaking responsibilities for children.  

How Should Employers Address Workplace Harassment and Discrimination During the Pandemic?

Employers are recommended to ensure that managers are trained to recognize and respond promptly and appropriately to such conduct, such as “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.” Harassment may occur despite employees not being in the workplace, including through electronic means, and may arise out of conduct by non-employees, such as contractors, customers or clients.

The EEOC suggests that employers remind employees that harassment and discrimination are unlawful, encourage them to report any harassing conduct that they experience or witness, and remind them that engaging in harassment will lead to disciplinary action, up to and including termination of employment. Further, employers should handle any discrimination or harassment that occurs while employees are working remotely in the same manner as if it occurred in the workplace.

Conclusion

The most recent EEOC updates provide further clarity to employers who are dealing with novel and thorny issues as they plan to reenter the workplace. The guidance is also a clear reminder that while employers are understandably focused on the health and physical well-being of their workforce and business associates, all employment-related decisions must be made in accordance with applicable anti-discrimination laws, which remain operative.  

As always, employers should be aware of state and local laws in jurisdictions where they do business, as they may provide broader protections than federal anti-discrimination laws addressed in the EEOC guidance, and consult with counsel as appropriate. 

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For More Information:

Howard S. Lavin

Elizabeth E. DiMichele

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.