On June 11, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released additional guidance covering topics like the well-intended exclusion of workers over the age of 65 who, according to the Centers for Disease Control and Prevention (CDC), are deemed to be at greater risk for severe cases of COVID-19. The guidance also covers issues related to pregnancy, remote harassment and employees living with family members who are high risk due to underlying health conditions.
As benevolent as the employer’s intentions may be, the EEOC warns that unilaterally excluding workers ages 65 and older to reduce COVID-19 risk would violate the Age Discrimination in Employment Act (ADEA). The agency goes on to say that businesses are “free to provide flexibility” to employees over 65 for voluntary measures that reduce risk, such as temporary reassignments, and that the ADEA doesn’t preclude such actions even if it means that workers in the 40-64 age range (also covered by the ADEA) get “treated less favorably based on age in comparison.”
Employers should be mindful of their specific jurisdictions as there are further reaching age protections in some states, and those statutes should be carefully considered when forming a return-to-work or emergency preparedness plan.
Similarly, pregnant women cannot be involuntary barred from returning to work, though some pregnant women may be entitled to a reasonable accommodation under the Americans with Disabilities Act or the Pregnancy Discrimination Act. It’s important to remember that pregnancy itself is not a disability, but a medical condition that arises from pregnancy, like gestational diabetes for example, may be considered a disability.
The EEOC also addressed whether or not an employee must be given time off as a reasonable accommodation under the ADA so they can avoid potentially exposing a family member to COVID-19 if that family member has a medical condition that places them at higher risk. Put plainly, the EEOC specified that workers would not be entitled to accommodation under those circumstances.
In addition to the inquiries related to accommodation, the agency took steps to make very clear that harassment in teleworking environments should be treated the same as harassment that takes place in the physical workplace. Employers should recall that hostile remarks or behavior can originate from contractors, customers, or clients; thus, it is recommended that employers circulate their organizations’ anti-harassment/anti-discrimination policy to ensure all employees are aware of how to report an incident should one take place.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.