EEOC Updates Guidance Again – COVID-19 Concerns Warrant Flexibility but May Not Be Used to Prevent Older or Pregnant Employees from Returning to Work

15 June 2020 Blog
Authors: Carmen N. Decot (Couden)
Published To: Coronavirus Resource Center: Back to Business Labor & Employment Law Perspectives

Over the course of the past three months, the EEOC and Department of Labor have published a plethora of responses and updates to frequently asked COVID-19 questions. Topics have ranged from paid leave requirements under the Families First Coronavirus Response Act and permissible actions under the ADA to wage and hour issues stemming from changes in employee work hours and locations and COVID-19 as a recordable illness.  Now the EEOC has once again updated its technical assistance guidance for employers.  This set of updates addresses return-to-work issues related to age and pregnancy, accommodation obligations with respect to employees with household members who may be at higher risk of severe illness due to COVID-19, and pandemic-related harassment directed at persons who are Asian or of Asian national origin.

With respect to returning to work for pregnant employees and employees age 65 or older, the EEOC’s updated guidance states that the Age Discrimination in Employment Act (ADEA) and Title VII prohibit covered employers from involuntarily excluding workers from the workplace based on their age or pregnancy, even where the exclusion is based on “benevolent reasons such as protecting the employee due to higher risk of severe illness due to COVID-19.” 

However, according to the EEOC, the ADEA does not prevent employers from providing more flexibility in terms of teleworking, leave, and other alternative arrangements to workers age 65 and older in order to address COVID-19-related risks, even if such flexibility means that workers aged 40 through 64 are treated less favorably in comparison.  Moreover, under the Americans with Disabilities Act and Pregnancy Discrimination Act, both older and pregnant employees may have medical conditions that entitle them to workplace accommodations such as telework, modified schedules, or leave based on a disability or, in the case of pregnancy, to the extent such accommodations are provided to other employees who are similar in their ability or inability to work.

In contrast to the accommodation obligations applicable to pregnant workers or those with disabling medical conditions, the EEOC’s updated guidance explicitly states that employees are NOT 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.  Rather, the EEOC notes that the ADA’s prohibition against discrimination based on association with an individual with a disability only protects employees from different treatment or harassment based on that association. 

Consequently, although employers are free to allow teleworking or alternative work arrangements in order to address a variety of individual circumstances related to COVID-19, they are not required to do so outside of the disability or pregnancy context.  Employers who choose to offer more flexibility and alternative work arrangements that go beyond what is required by law may send a general notice to all employees notifying them that the employer is willing to consider requests for accommodations on a case-by-case basis; however, they must be careful not to engage in prohibited discrimination when granting or denying such requests.  This includes, for instance, allowing more favorable treatment for female employees (e.g., extended telework or additional leave) based on gender stereotypes about which employees have the primary responsibility for child care.

Finally, the EEOC also addressed the possibility of pandemic-related harassment against employees who are or are perceived to be Asian, noting that employers “should be alert to demeaning, derogatory, or hostile remarks,” including those “about the coronavirus or its origins.” The EEOC recommended that employers take steps now to ensure that managers are able to recognize and promptly respond to any instances of harassment against employees from any source (including other employees or contractors, customers, clients, and visitors).  According to the EEOC, among other things, employers may want to send a reminder to their workers about Title VII’s prohibitions on harassment, the employer’s procedures for reporting harassment to management, and the disciplinary actions, including termination that may result from harassing conduct.  The EEOC also noted that employers should treat any harassment that occurs electronically (e.g., via email or phone from or to an employee who is working remotely) in the same manner as harassment that occurs on the employer’s work site. 

As workplaces continue to reopen, requests for extensions of remote working arrangements, paid leave, and other COVID-19-related modifications are likely to become more common.  Consequently, employers with questions regarding these matters should consult with experienced employment counsel prior to making decisions regarding such requests.

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form. 

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services