Remember, even if an employer is acting out of genuine concern for an employee’s safety, disparate treatment on a protected basis is unlawful and must be avoided.
On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) released additional Q&As in “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” clarifying and expanding upon guidance covered in our previous Alert.
As businesses reopen during the COVID-19 pandemic, employers continue to grapple with how to safely return employees to the workforce, particularly those employees with certain underlying conditions identified by the CDC, as well as pregnant employees and those over the age of 65.
Covered in the previous EEOC guidance, Q&A G.4 expressly prohibits an employer from excluding an employee from the workplace based solely on the fact that the employee has a disability that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if the employee contracts COVID-19. The recent addition of Q&A H.1 confirms this is also the case for employees over 65 years of age―a group also identified by the CDC as at higher risk for severe illness resulting from COVID-19.
Q&A H.1 provides that the Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older; accordingly, the ADEA makes it illegal for an employer to involuntarily exclude employees 65 years or older on the basis of their age, even if such action comes from a place of genuine concern for the employee’s safety.
Additionally, while the ADEA does not require an employer to provide reasonable accommodations for older workers solely due to age, employers may elect to do so, even if it results in younger workers (40-64 years old) being treated “less favorably” based on age in comparison. As such, concerned employers have the ability to discuss and consider an employee’s accommodation requests made on the basis of the employee’s age. However, the employee must request the accommodation in order to begin the interactive process, as previously stated in Q&A G.4. The employer cannot simply assume the employee needs an accommodation based on the employee’s age any more than it can assume an accommodation is needed based on an employee’s disability.
The addition of Q&As J.1 and J.2 similarly confirm that employers may not exclude a pregnant employee from the workplace, even if motivated by “benevolent” concern for the employee and the unborn child. However, the employee may be entitled to a reasonable accommodation under federal law for pregnancy and related medical conditions.
Although pregnancy itself is not a disability under the ADA, pregnancy-related medical conditions may be disabilities, like severe morning sickness or gestational diabetes, in which case the employee may be entitled to a reasonable accommodation which the employer must consider under “the usual ADA rules.”
In addition, Title VII, as amended by the Pregnancy Discrimination Act, requires that employees affected by pregnancy, childbirth or other related medical conditions be treated the same as others who are “similar in their ability or inability to work.” For employers, this means that the pregnant employee may be entitled to job modifications like telecommuting or modified work hours if similar accommodations are offered for other employees, which enable the employee to perform her essential job duties. Of course, employers must also be mindful of state and local laws, like those in New York, California, New Jersey, Illinois, Connecticut, Maryland, Philadelphia and many other jurisdictions, which affirmatively require them to accommodate pregnant employees outright.
Requests for Accommodation Generally – Whose Responsibility to Initiate?
As previously reported, Q&As G.3 and G.4 confirmed that under the ADA, an employer is not required to take any action with respect to accommodating an employee if that employee does not request a reasonable accommodation. The guidance further confirmed that it is the employee’s responsibility to initiate the interactive process either by way of a written or verbal request from the employee or authorized third party.
Notwithstanding the foregoing, Q&A G.6 states that the ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact if they want to request an accommodation for a disability before returning to the workplace. As a “best practice,” the EEOC advises that this can be done in one of two ways.
First, an employer may send a general notice out to all employees about who to contact if they need to request an accommodation prior to returning to work―even if the employer has yet to announce a date of return. The employer may also choose to include all CDC-listed medical conditions that may place people at higher risk of serious illness, including people ages 65 or older.
Alternatively, if an employer is reopening in phases, an employer may send out a general notice to those employees who are designated to return in each phase specifying who they should contact if they require an accommodation. In either case, the employer should specify that it will consider requests for accommodation on an individualized basis. It is also vital that employers ensure that each request is handled consistently and in a nondiscriminatory manner based on state and federal laws.
Employers should note that despite the general rule that it is the employee’s responsibility to initiate the accommodation process, cases under the ADA, and certain state laws, require an employer to make a reasonable accommodation where needed if the disability is known, even if the employee does not make an accommodation request.
Requests to Accommodate Family Members
Notably, Q&A D.13 states that accommodations are limited to the employee and his or her disability, and not on the basis of family or household members who may be at higher risk of severe illness from COVID-19 as a result of a disability or other CDC-identified condition.
While the ADA prohibits discrimination on the basis of associating with someone with a disability, the law does not require an employer to accommodate an employee on the basis that the employee’s family member or other close contact has disability-related needs. An employer is free to consider these factors if they so choose in the provision of an accommodation, but the EEOC warns an employer should proceed with caution and avoid engaging in “disparate treatment” on some other protected EEO basis (e.g., declining to recall an employee because they have a disabled family member).
Accommodation of Employees with Childcare Responsibilities
Similarly, for modified work requests resulting from child care responsibilities, employers may (but are not required to) accommodate such flexibilities so long as they are not treating employees differently on the basis of sex or other EEO-protected characteristic; for example, by allowing female employees to work from home due to child care responsibilities but denying the same request by male employees.
What This Means for Employers
While it is important to protect your employees, employers must be cautious and avoid the aforementioned pitfalls, which can lead to ADA or other EEO discrimination claims. Employers should be thoughtful in their approach to returning employees to the workplace and be sure to apply their policies consistently and fairly across the workforce at every step of the interactive process. Remember, even if an employer is acting out of genuine concern for an employee’s safety, disparate treatment on a protected basis is unlawful and must be avoided.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Sarah A. Gilbert, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.