On June 11 and June 17, 2020, the EEOC updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Q&A technical assistance guidance for COVID-19 related issues. The new guidance expands its previous guidance, answering additional questions on several topics, including COVID-19 antibody tests, “high risk” employees (which we blogged about here), accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace. We have summarized the new Q&A below.

Disability-Related Inquiries and Medical Exams

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

Reasonable Accommodation

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 to telework as an accommodation under the ADA to protect a family member with a disability from potential COVID-19 exposure.

An employer is free to provide such flexibilities if it chooses to do so, but if an employer offers flexibilities beyond what is required by law, the employer must be careful not to engage in disparate treatment of those in protected categories.

Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

E.3.  How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian?

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 how to recognize such harassment. Harassment can 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; inviting anyone who experiences or witnesses workplace harassment to report it to management; and reminding 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?

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.

Return to Work

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?

Yes. The new guidance highlights two approaches. Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance emphasizing 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 from COVID-19. For either approach, employers should ensure the individuals receiving the employee requests are well-versed in handling them consistent with relevant federal employment nondiscrimination laws applicable to each particular inquiry.

Approach #1: Under the ADA and the Rehabilitation Act, employers can make advance information available to all employees regarding who to contact to request an accommodation that may be necessary when the employee returns to the workplace. The employee can make the request regardless of whether the employee’s return date has been announced.

If requests are received in advance, the employer may begin the interactive process (asking questions or requesting medical documentation to determine whether the employee has a “disability” as defined by the ADA). The notice to the employee can include:

  • A list of the CDC-listed medical conditions that may place people at higher risk of serious illness from COVID-19,
  • Instructions about who to contact, and
  • An explanation that the employer is willing to consider on a case-by-case basis requests from employees who have these or other medical conditions.

Approach #2: An employer can also send a general notice to all employees designated for return to the workplace 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 (such as if the contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities).

G.7.  What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?

This is a request for reasonable accommodation, and should be handled as any other request for accommodation under the ADA or the Rehabilitation Act.  If the requested change is easy to provide and inexpensive, the employer may voluntarily choose to make it available to the employee (and any other employee who asks) without advancing through the interactive process. However, if the disability is not obvious or already known, the employer may choose to proceed with the interactive process, and then determine if the requested 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.

Age

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?

Yes. The ADEA prohibits employment discrimination against individuals age 40 and older, and would prohibit an employer from excluding an individual from the workplace based on the employee being 65 or older, even if the reason was benevolent (such as the employer’s desire to protect 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 based on their age. However, the ADEA does not prohibit employers from providing flexibility to workers age 65 and older, even if the result is that younger workers ages 40-64 are treated less favorably (based on age) in comparison.

In addition, workers age 65 and older may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. If they do, they may request reasonable accommodation for their disability as opposed to their age.

Caregivers/Family Responsibilities

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?

Yes. Employers may provide flexibilities as long as they do not treat 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 formed on a gender-based assumption that women are more likely than men to have caretaking responsibilities for children.

Pregnancy

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.  An employer cannot implement adverse employment actions (including preventing the employee from returning to work, involuntary leave, layoff, or furlough) against employees on the basis of pregnancy, even if the employer is motivated by benevolent concern (such as being concerned about the employee’s safety).

J.2.  Is there a right to accommodation based on pregnancy during the pandemic?

Both the ADA and Title VII may trigger accommodation for employees based on pregnancy.

First, under the ADA, pregnancy-related medical conditions may be disabilities, even though pregnancy itself is not a disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider the request as any other request for reasonable accommodation under the ADA, and follow the required evaluative process.

Second, Title VII as amended by the Pregnancy Discrimination Act 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.  Thus, a pregnant employee may be entitled to job modifications (including telework), changes to work schedules or assignments, and leave to the same extent those adjustments are provided for other employees who are similar in their ability or inability to work. Make sure that your supervisors, managers, and human resources personnel know how to handle pregnancy-related accommodation requests to avoid claims of disparate treatment in violation of Title VII.

For help navigating these and other employment-related issues, contact your Baker McKenzie employment attorney.