Employment Discrimination and COVID-19
The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance clarifying application of anti-discrimination laws in the context of the COVID-19 pandemic. This guidance primarily deals with ADA issues, including a guide on Pandemic Preparedness in the Workplace, but also covers concepts traditionally within the purview of other anti-discrimination laws (i.e. age discrimination under the Age Discrimination in Employment Act).
The guidance touches on two major issues that many employers might face in recalling employees to work during the ongoing pandemic: (1) When does an employee qualify for a reasonable accommodation related to the pandemic? and (2) When can an employer exclude an at-risk employee from the workplace?
When does an employee qualify for a reasonable accommodation?
According to the EEOC guidance, any employee that has a medical condition identified by the CDC that might place that individual at “higher risk of severe illness” if they get COVID-19 is entitled to request accommodations. Notably, listed among the higher risk groups are people 65 years and older. As such, age, which is not typically considered in and of itself as a qualifying disability under the ADA, is protected under the ADA with respect to COVID-19.
The CDC guidance can change, and employers must adapt with that guidance, but the current list individuals at a higher risk of severe illness is as follows:
- People 65 years and older
- People who live in a nursing home or long-term care facility
People of all ages with underlying medical conditions, particularly if not well controlled, including:
- People with chronic lung disease or moderate to severe asthma
- People who have serious heart conditions
- People who are immunocompromised—Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
- People with severe obesity (body mass index [BMI] of 40 or higher)
- People with diabetes
- People with chronic kidney disease undergoing dialysis
- People with liver disease
If an employee at higher risk of severe illness requests a “reasonable accommodation,” whether using that specific term or not and whether requested verbally or in writing, an employer must engage in the interactive process.
All employers in Pennsylvania currently conducting in-person operations are required to implement a number of safety measures, including mandating that face masks be worn, mandating social distancing, and implementing increased hygiene protocols. Notwithstanding those safety measures, employees in a higher-risk category may request additional accommodations in returning to work. If such accommodations are requested, the employer should engage with the employee in the interactive process to determine whether there is a reasonable accommodation that the employer can provide without undue hardship.
The EEOC guidance lists a number of examples of possible accommodations, including: making changes to the work environment, like designating one-way aisles and installing plexiglass dividers or other barriers to ensure social distancing; providing additional PPE for the employee; temporarily transferring the employee to a different position, removing the person’s non-essential job duties, or modifying the person’s schedule; and changing the employee’s work location (i.e. from the middle of a production line to the end of the production line) if another location naturally provides for more social distancing. Another possible reasonable accommodation is to permit an employee to remotely perform those job functions that are possible to perform via telework.
Identifying appropriate reasonable accommodations during the interactive process depends, among other things, on the employee’s job duties and the physical characteristics of the workplace. The EEOC encourages employers and employees to be creative and flexible in discussing possible accommodations.
When can an employer exclude an at-risk employee from the workplace?
If an employee does not make a request for a reasonable accommodation the employer does not have to take any action, however, an employer may be concerned about the employee’s health upon returning even if the employee is not. Under the ADA, the employer can only exclude the employee from the workplace if the employee’s disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation. An employer faces a high burden in proving a “direct threat” defense and should not exclude an employee without careful consideration of the risk to the employee.
Complying with the thicket of employment laws at this time is additionally complicated by the constantly developing State and Federal workplace and safety guidance. If you have any questions regarding anti-discrimination issues or otherwise preparing your workplace to safely operate during the COVID-19 pandemic, please contact a MacDonald Illig attorney to assist you.