Return to Work
As a way for employers to determine in advance which of their employees may require flexibility in work arrangements, the Guidance notes that employers may provide notice to all employees explaining how to request an accommodation for a disability that they may need upon return to the workplace (or how to request accommodations/flexibility for other reasons). This is true even if no date has been announced for their return.
Employers can begin the interactive process—the discussion between the employer and employee about the nature of the disability (or other reason for the request) and the requested accommodations—once requests are submitted.
The Guidance provides that employers may also include in this notice (1) all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, (2) instructions about whom to contact with accommodation requests, and (3) an assurance that the employer will consider, on a case-by-case basis, any request for accommodation from an employee who has these or other medical conditions.
The HR person receiving requests should be familiar with the different federal nondiscrimination laws that apply to accommodations due to a medical condition, a religious belief, or pregnancy.
Importantly, the EEOC notes that the ADA does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom they are associated. While an employer may choose to provide flexible work arrangements for an employee who wants to avoid potentially exposing a vulnerable family member, it should be careful to implement such policies in a nondiscriminatory manner.
Although 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, the EEOC’s updated guidance reminds employers that they need to be cautious when making employment decisions based on age, and specifically, that they may not unilaterally exclude older employees from the workplace based on age.
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. Accordingly, employers may not involuntarily exclude an individual from returning to work just because they are 65 or older, even if the employer is doing so to protect the health of an employee deemed at a higher risk of severe illness relating to COVID-19.
Employers are not required to provide reasonable accommodations for older workers due to their age. They may, however, choose to provide more flexibility to workers aged 65 and over without violating federal law, even if doing so results in younger workers ages 40-65 being treated less favorably. Some jurisdictions (e.g., New York, New Jersey, and Washington DC), however, have laws that protect all workers—including those under age 40—from age discrimination. Accordingly, employers should consider the legal risk to granting accommodations to older employees in such jurisdictions based solely on their risk of severe illness arising from COVID-19.
Note also, that even though workers age 65 or older are not entitled to accommodations due solely to their age, older workers and younger workers alike who have underlying medical conditions may be eligible for reasonable accommodations related to those conditions.
The Guidance also reminds employers who provide telework, modified schedules, or other benefits to employees with increased childcare responsibilities due to COVID-19 that they need to ensure they are not treating employees differently based on sex or other protected characteristics. For example, the EEOC specifically states that an employer cannot give more favorable treatment to female employees compared to male employees because the employer assumes women have more pressing caretaking responsibilities for children.
The EEOC also cautions employers against unilaterally excluding pregnant employees from the workplace.
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 for adverse employment actions—including involuntary leave, mandatory teleworking, layoff, or furlough—because they are pregnant. Of course, pregnant employees may also be entitled to reasonable accommodations. Under the ADA, pregnancy-related medical conditions may qualify as disabilities (even though pregnancy itself is not a disability). Such requests are to be considered under usual ADA procedures.
A pregnant worker may also be entitled to accommodations under Title VII as amended by the Pregnancy Discrimination Act (PDA) (as well as under state pregnancy discrimination laws). Under the PDA, women affected by pregnancy, childbirth, and related conditions are entitled to the same job modifications—including telework, changes to work schedules or assignments, and leave—as others who are similar in their ability or inability to work.
The WilmerHale Labor and Employment team is monitoring these developments closely and is available to offer specific guidance to employers as they prepare to welcome employees back to the workplace.