Woman returning to work at a restaurant

On June 11th, the EEOC issued some additional guidance related to COVID-19 on its Q&A website. The guidance is very timely, as it provides clarity to many questions employers have as their employees return to the workplace. For Part 3 of our series about returning to the office, we’ve listed the questions and answers below and provided some analysis.

1) Do employers have to accommodate an employee who lives with a family member who has a high risk of severe illness from COVID-19?

We’ve received this question from many clients. Per the EEOC guidelines, an employer does not have to provide an employee with an accommodation in these circumstances. Even if the employee’s family member is at higher risk for COVID-19, that employee is not entitled to an accommodation under the ADA. Though the ADA does prohibit discrimination based on an association with someone with a disability, it’s not applicable in this case. Therefore, if an employee in this situation made a request to continue to telework as an accommodation; that request could be lawfully denied. Of course, employers can grant such a request without considering it as an ADA accommodation, and flexibility in these types of cases is encouraged.

2) Should employers encourage employees to request flexibility in work arrangements?

The new EEOC guidance suggests that employers should proactively make information available for employees who request accommodation before returning to the workplace. The employer can take several steps to accomplish this:

      1. If requests are received in advance, the employer should begin the interactive process right away;
      2. An employer may issue a notice including the CDC list of medical conditions that make an employee more susceptible to serious illness if they contract COVID-19 and provide instructions about who to contact in the organization;
      3. Explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions;
      4. Send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis.

The guidance also emphasizes the importance of employers providing accommodations and being more flexible regarding employees who are more susceptible to COVID-19.

3) What if an employee requests an alternative method of screening due to a medical condition?

Per the guidelines, this situation should be treated as a request for a reasonable accommodation and the employer should engage in the interactive process to determine the appropriate action to address the employee’s needs. If the request is inexpensive and doesn’t pose an undue hardship, the employer should consider voluntarily making it available to their employees without going through an extensive interactive process.  In addition, if the disability is not obvious an employer may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided. Similarly, if an employee requested an alternative method of screening because of religious concerns, the employer should determine if a religious accommodation is available under Title VII.

4) Since employees age 65 and over are not entitled to an accommodation do employers have to provide them with any other protections?

The Age Discrimination in Employment Act prohibits employment discrimination against individuals age 40 and older however it does not require a reasonable accommodation for these individuals. The guidance does recommend employers be flexible when it comes to workers over the age of 65 who may have concerns over susceptibility to COVID-19.

5) Since the CDC has identified pregnancy as potentially being more susceptible to COVID-19, can an employer exclude a pregnant employee from the workplace?

Even if the employer has a legitimate concern about the pregnant employee’s safety it cannot single that employee out and involuntarily remove them from the workplace. However, if a pregnant employee requests an accommodation because of a pregnancy-related medical condition, the employer should engage in the interactive process to determine the appropriate accommodation. In addition, Title VII as amended by the Pregnancy Discrimination Act provides that women affected by pregnancy, childbirth, and related medical conditions may be entitled to job modifications, including telework, changes to work schedules or assignments and leave to the extent provided to other employees similarly situated in their ability or inability to work.

6) Is it discriminatory to offer telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic?

It can be discriminatory if the employer is treating employees differently based on sex or other protected characteristics. For example, female employees cannot be given more favorable treatment than male employees because of stereotypical assumptions about who typically is the caregiver for children.

7) Can an employer require antibody testing before permitting employees to re-enter the workplace?

The CDC, in its Interim Guidelines has stated that antibody test results “should not be used to make decisions about whether an employee can return to the workplace.” In light of this position, an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before

allowing employees to return to work would not be allowed under the ADA. However, an antibody test is different from a test to determine if an employee has an active case of COVID-19 which the EEOC has stated is permissible under the ADA.  As always, use good judgment and fairness when initiating medical examinations in the workplace.

As a best practice, continue to monitor the most current information being issued by the EEOC, the CDC, the World Health Organization (WHO) and your state and local public health authorities for additional guidance. In addition, the EEOC will continue to monitor the CDC’s recommendations and will update their guidance accordingly.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.