June 11, 2020 – Today the EEOC issued its latest update to an already-existing document entitled “What You Should Know About COVID-19 and the ADA, The Rehabilitation Act, and Other EEOC Laws.” The full text of the guidance memo may be found at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=. Employers may easily determine the newer portions of the guidance, since the agency included the date of 6/11/20 following the newest Q and A’s.
Not all of the updated sections of the guidance are particularly earthshaking, but here are a few of the more important points to note:
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…. 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 a potential COVID-19 exposure.
The two other most important observations raised in the updated guidance had to do with potential age and pregnancy discrimination issues which could possibly stem from well-meaning employers being overly protective of certain employees who want to return to work. With respect to the former:
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?
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 age 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 the 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.
Finally, with respect to pregnancy discrimination, the EEOC has this to say:
J.1. Due to the pandemic may an employer exclude an employee from the workplace involuntarily due to pregnancy?
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, lay off, or furlough.
While these are the most salient provisions of the new guidance, employers are encouraged to read all of the updated information from the EEOC. As always, please feel free to contact The Kullman Firm attorney with whom you work if you have any additional questions.
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Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.
