The Equal Employment Opportunity Commission (EEOC) issued updated guidance on June 11, 2020, for employers regarding potential discrimination as part of the “return to work” efforts that are now underway.
Americans with Disabilities Act (ADA)
Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
The agency also voted to send a notice of proposed rulemaking to the White House Office of Management and Budget that would allow employers to offer small incentives to participate in voluntary wellness programs without violating the ADA.
All information about employee illness must be treated as confidential medical records in compliance with the ADA.
During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus. Symptoms of COVID-19 include fever, chills, cough, shortness of breath, and sore throat
The EEOC is allowing employers to test for the virus (and take their temperature) as a medical assessment for employees returning to work and for candidates when a conditional offer of employment has been made. However, any pandemic screening or testing must be for facility-access purposes and should not be used to terminate employment or disqualify a candidate.
Any employee requests an alternative method of worksite screening due to a medical condition, or a religious belief has to be treated as a request for accommodation and should be evaluated accordingly.
Employers may also provide information to employees about requesting disability accommodations before announcing a date for a return to the workplace, as long as they provide the information to all employees. The notice may include:
Include a list of all medical conditions identified by the U.S. Centers for Disease Control and Prevention (CDC) that may place people at higher risk of serious illness if they contract COVID-19.
Provide instructions about who employees should contact for requests and questions.
Suggest that the employer is willing to consider requests on a case-by-case basis from employees who have listed conditions.
Age Discrimination
8. "The EEOC reminds employers that they can't treat workers age 65 and older less favorably than other employees, even if their efforts are intended to protect employees at a higher risk of severe illness from COVID-19. However, employers can provide additional flexibility to employees who are 65 years of age and older, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.
Pregnancy and Family Responsibilities
9. Employers may also not exclude a pregnant worker from the workplace out of fear for the woman's safety. In addition, pregnant workers are entitled to reasonable accommodations under the Pregnancy Discrimination Act and, if they have accompanying medical complications, under the ADA.
10. Employers can provide flexibility to employees, so long as they do not treat employees differently based on gender or other protected characteristics. For instance, employers shouldn't offer female employees more favorable treatment than male employees because of a gender-based assumption about who may be the primary caregiver.
11. Conversely, when deciding whom to bring back to work, please do not make assumptions that women are more likely than men to have caregiving responsibilities and hence will not be able to focus sufficiently on their work.
Contact Bromberger Law to learn more about our offered services.