On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) once again updated its guidance regarding how the COVID-19 pandemic affects an employer’s legal obligations under existing federal anti-discrimination laws. This latest guidance clarifies the extent to which these laws apply to certain categories of employees, including (1) older employees, (2) pregnant employees, and (3) employees with family obligations.
As discussed at length in an earlier Taft update, the Americans with Disabilities Act (ADA) generally requires employers to provide reasonable workplace accommodations to workers who have underlying medical conditions that make them especially likely to develop severe symptoms if they contract COVID-19. Perhaps the most significant aspect of the new guidance is the EEOC’s clarification about how the ADA and the Age Discrimination in Employment Act (ADEA) apply to individuals age 65 and over, an age group that the Centers for Disease Control (CDC) considers to be at higher risk for developing severe illness from COVID-19. Unlike the ADA, the ADEA, does not require employers to engage in an interactive process to determine what reasonable accommodations the employer may be able to offer due to the employee’s age. Thus, although the CDC and the EEOC both encourage employers to provide maximum flexibility to older workers, advanced age — without more — does not trigger a legal obligation for the employer to provide reasonable accommodations. On the other hand, an employee may not involuntarily exclude older employees from the workplace merely because they may be at higher risk for serious illness related to COVID-19. Further, older employees may have medical conditions that bring them under the protection of the ADA.
The most recent iteration of the EEOC’s guidance is the first to address how the COVID-19 pandemic potentially affects an employer’s legal obligations to pregnant employees under the ADA and Title VII, as amended by the Pregnancy Discrimination Act. The guidance reminds employers that pregnant employees may be entitled under the ADA to reasonable accommodations for pregnancy-related medical conditions. However, employers must not single out pregnant employees for any type of adverse employment actions, regardless of the employer’s motivation. For example, it is no defense that the employer may have been acting out of benevolent concern for a pregnant employee’s health when it prohibited her — but not her non-pregnant colleagues — from returning to the workplace due to concerns about COVID-19.
Employees with Family Obligations
The new guidance also makes clear that the ADA does not require an employer to accommodate non-disabled employees based on the disability‑related needs of their family members or associates. Thus, an employee without a disability is not entitled under the ADA to work from home merely to protect a family member who has a disability.
That said, employers can — and should — provide more flexibility than the law requires when they are able to do so, provided that they offer this flexibility in an even-handed way that does not have a disparate impact on any protected group. For example, an employer who permits employees to work from home because there is no available childcare or due to school closures must avoid differentiating between male and female employees because of gender-based assumptions about who is most likely to have childcare responsibilities.
The EEOC’s updated guidance provides additional advice for how employees can balance their existing obligations under federal anti-discrimination law with their business needs. This guidance reflects the reality that COVID-19 poses significant challenges to both employers and employees, and that employers should, where possible, work with these employees to provide reasonable accommodations in a flexible but even-handed fashion.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.