EEOC Updates Workplace Discrimination Guidance

On June 17, 2020 the U.S. Equal Employment Opportunity Commission, tasked with enforcing workplace discrimination law, clarified and expanded its earlier guidance, the subject of a prior Client Alert, regarding discrimination in the workplace during the COVID-19 pandemic.

Anti-discrimination laws generally impact employers in two ways: (1) prohibiting employers from taking actions on a discriminatory basis (i.e. age, sex, religion, disability, etc.), and (2) granting employees of certain protected classes, i.e. individuals with a disability, rights to workplace accommodations.

The EEOC Guidance makes clear that, while employers must be mindful of discrimination laws during the pandemic, discrimination laws do not prevent employers from following local, state, or federal public health guidance.  As a result, employers must comply with public health guidance, but be sure to do so in a non-discriminatory manner.  Below is a summary of the current EEOC Guidance. 

At-Risk Employees, Employee Rights and Employer Responsibilities

Under the EEOC Guidance, individuals at a higher risk from COVID-19, including people over 65 years old, pregnant women, and those with certain underlying medical conditions have the following protections:

• An employment offer may not be withdrawn, or a start-date postponed, unilaterally by the employer because the individual is in a higher risk category.
• Employees with a preexisting disability which puts them at a higher risk from COVID-19 may request reasonable accommodations, triggering the interactive process.
• Given the exigencies of the pandemic, employers may choose to forgo or shorten the interactive process and grant the accommodation request.
• An employer cannot exclude an employee at higher risk for severe illness from the workplace unless the employee poses a direct threat to the employee’s health and safety or the health and safety of others which cannot be eliminated or reduced by reasonable accommodation.  An employee, however, who is at higher risk can request reasonable accommodation of the employer, which may include excluding the employee from the physical workplace, i.e. via teleworking, if such accommodations do not pose an undue hardship on the employer.
  

Employer Testing

• Employers may follow CDC or other public health guidance in screening employees, so long as such screening is consistent for all employees and does not single out employees in a protected category.  Such screening measures include: temperature testing, asking questions about symptoms, or requiring self-reporting of COVID symptoms or infection. 
• Employers cannot require antibody testing before permitting employees to re-enter the workforce. 
  

Other Highlights

• Employees who have a family member that is at higher risk from COVID-19 is not entitled to an accommodation under the ADA in order to avoid exposing the family member with an underlying condition.
• Employers should be alert to the potential of workplace harassment on the basis of race, national origin, or other protected characteristics.  The EEOC has specifically addressed the need to employers to be aware of the possibility of pandemic-related harassment against people who are or are perceived to be Chinese or of other Asian national origin.
• As a best practice in order to learn about potential requests for accommodation when employees return to the workplace, an employer, in advance of such return to work may provide notice to all employees about who to contact to request an accommodation or send a similar general notice to all employees, noting that the employer will consider accommodation requests on an individualized basis.