Last week, the Equal Employment Opportunity Commission (EEOC) issued updated technical assistance questions and answers entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” It was the second update to the guidance this month. If history is our guide, the science and guidance may be different by the end of next month; but the EEOC’s Q&A currently represents the most up to date direction for employers as they eye reopening offices and bringing employees back from remote work or layoffs.
While employers are well-counseled to be familiar with the entirety of the Q&A, the June updates have clarified the EEOC’s position with respect to several issues. For example, the EEOC had previously stated that COVID-19 viral tests were permissible under the Americans with Disabilities Act because the disease posed a “direct threat” to other employees. The Commission has now clarified that antibody tests do not share the same status and that employers cannot utilize antibody tests as a prerequisite for employees to reenter the workplace.
Another recent revision addresses the intersection of accommodation and age discrimination. Specifically, the EEOC clarified that, even though individuals over the age of 65 are at higher risk for a severe case of COVID-19, it would be a violation of the Age Discrimination in Employment Act for an employer to preclude older workers from returning to the workplace even if it was for the benevolent reason of protecting that individual from the risk of infection. The guidance similarly clarified that employers would also violate the law (here Title VII) if they precluded pregnant women from returning to work even if motivated by benevolent concern for their health.
Another increasingly common question addressed by the guidance is an employer’s obligation to an employee who themselves may not be at risk of severe illness but who might expose a family member who is immunocompromised. The EEOC’s June 11 update clarified as follows:
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?
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.
The EEOC did note that an employer would be free to provide such flexibility if it chooses to do so, but such accommodation is not required as a matter of law.
Consistent with that principle, the updated guidance also provides best practices for employers to invite employees to request flexibility in work arrangements more generally. The EEOC encourages employers to begin the discussion around accommodation now – i.e., while employees are currently teleworking to provide time for an interactive process. Broadcast communications to staff beginning such discussions are also advised to include CDC-listed medical conditions that may place people at higher risk of serious illness, provide instructions about who to contact, and indicate that the employer is willing to consider requests on a case by case basis.
It’s a quickly evolving world for employers. Further updates as COVID-19 events and regulatory responses warrant!!
About the Author:
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.