Top Takeaways from the EEOC COVID-19 Guidance
The business challenges stemming from the current COVID-19 pandemic require employers to balance health and safety issues while continuing to provide their products and services to customers. Companies must also take steps to protect their employees, including the most vulnerable workers, who cannot be treated differently than others without their agreement.
What to Know about EEOC COVID-19 Guidance
The U.S. Equal Employment Opportunity Commission (EEOC) recently released updated COVID-19 guidance that reinforces the actions employers must take in the current business environment. A pandemic preparedness guidance document was originally published by the EEOC in 2009, during the H1N1 pandemic and was updated March 19, 2020 with additional instructions on dealing with the current COVID-19 pandemic. Since COVID-19 has been categorized as a "direct threat" — meaning the virus is associated with significant health risks that cannot be mitigated in the workplace with reasonable accommodations — certain portions of the previous guidance have been updated. Specifically, employers are reminded of certain responsibilities that are of particular concern during this challenging time:
- Anti-discrimination: Employers are reminded of their duty to take action to prevent any discrimination in the workplace. This includes discrimination based on race or national origin.
- Requests for employment accommodations: Employers should continue providing reasonable accommodations for employees with known disabilities that are unrelated to the pandemic.
- Employee availability: Employees must be treated similarly regardless of their sex when it comes to child care. While working through the current pandemic, employers may survey their employees and ask about their availability to come to work due to reasons such as school or day-care center closures, the stoppage of public transportation, or if the employee or a member of their household is at high risk for complications from the COVID-19 virus.
- Vulnerable employees: Employers should distribute information to employees about how to request a necessary accommodation. Employers should also not assume that a vulnerable employee wants to avoid the workplace. Requests for alternative methods of workplace screening due to medical conditions should be treated like any other request.
However helpful this information may be, employers should remember that focusing only on EEOC guidance can inadvertently cause issues related to other employer-related legislation. By considering all potential applicable federal, state, and local laws, you can decrease the risk of legal liability. Here are five important takeaways that you should keep in mind regarding the EEOC's updated COVID-19 Q&A guidance.
Do not assume that an employee needs an accommodation and do not lose sight of the bigger picture
The EEOC COVID-19 guidance makes it clear that, while employers generally need to accommodate concerns raised by their employees during this pandemic, you cannot presume that employees need an accommodation because, for example, of their health, age, or other condition such as pregnancy. This is a decades-old court-established principle. At the same time, some employees may request accommodations that are not required, but employers should nevertheless balance legal requirements with practical considerations. These concepts are discussed in more detail below.
As a whole, the new EEOC coronavirus guidance serves as an important reminder to employers regarding their obligations; however, employers would be wise to remember that the EEOC does not have responsibility for and does not speak to every employment law. Other federal and state laws may require a different or additional approach. Employers that ignore the bigger picture and blindly follow only the EEOC's updated narrow guidance could damage employee morale or retention, or find themselves facing claims under other various laws, not to mention liability claims in the worst-case-scenario of a death caused by exposure to COVID-19 in the workplace.
Although employees wishing to avoid exposing family members to COVID-19 are not entitled to an accommodation under the ADA (EEOC Q&A D.13), other laws may be at play
While the EEOC clarifies that under the Americans with Disabilities Act (ADA) an employee is not entitled to an accommodation to keep a family member from being exposed to COVID-19, the ADA is far from the only law to consider in this scenario. If the employee's family member has a serious health condition, leave could be covered by the Family and Medical Leave Act (FMLA) or a state equivalent of the FMLA, which often expands family member relationships beyond those covered under the federal FMLA. Further, if the employee is caring for a family member who is subject to a state/local quarantine order, a doctor's self-quarantine order, or is told by a medical provider to quarantine due to exposure risks, the employee may be entitled to emergency paid sick leave if you are a FFCRA-covered employer. You also need to keep in mind any state or local paid sick or family leave laws under which employees may have leave entitlements, as well as any local COVID-19-specific leave laws. For example, California has posted COVID-19 information relative to the California Family Rights Act. Also consider state and local orders that address vulnerable populations that may impose additional obligations or measures employers must take.
The ADEA prohibits exclusion of employees 65 and older from the workplace and does not require accommodations, but employers may still choose to provide additional flexibility to those over 65 (EEOC Q&A H.1)
While the EEOC reminds employers to avoid being paternalistic regarding older employees, there are other laws you should consider beyond the Age Discrimination in Employment Act (ADEA). You can consider probing the reason that the older employee may be requesting accommodation — if it is a medical condition, it could be covered by the ADA, or other laws, as discussed above.
If the employee is subject to a state/local quarantine order, a doctor's self-quarantine order, or is told by a medical provider to quarantine due to exposure risks, the employee may be entitled to emergency paid sick leave if you are a FFCRA-covered employer. You should also keep in mind the requirements of state or local orders, some of which may encourage those in the vulnerable age group to remain at home. In the context of the FFCRA, the DOL encourages employers to provide as much flexibility as possible to find solutions agreeable to all parties.
Pregnant employees cannot be excluded from the workplace and, with respect to accommodation, should be treated the same as others who are similar in their inability to work (EEOC Q&As J.1 and J.2)
The EEOC generally takes the position that pregnancy-related accommodation requests should be treated in an ADA-like manner, pursuant to the Pregnancy Discrimination Act (PDA). The EEOC also warns against paternalistic employer conduct where the employer decides what it thinks is best for a pregnant employee. Instead, an employer should have policies or practices in place that encourage pregnant employees to raise any need for accommodation. In addition to the EEOC guidance, there are several state and local requirements that require an employer to make accommodations such as a leave for pregnancy or pregnancy-related conditions.
Keep in mind unemployment compensation law expansions and general liability
Some state unemployment compensation laws have expanded reasons for benefits, including refusing to work because the employee resides with a member of a vulnerable group. If an employee refuses to work based on this type of reason, the employee could be eligible for unemployment compensation benefits, as determined by the relevant state.
Finally, you should keep in mind the potential general liability of the business. Third-party liability for various claims, including wrongful death claims (such as when an employer allows an employee showing symptoms to work and the employee carries it home to a family member) will play out in the courts as the pandemic progresses. Some states have already enacted laws that create civil liability immunity for employers, but carve out exceptions for an employer's misconduct that is wanton, reckless, willful, or intentional.
Now is the time to review your business liability insurance and speak with a knowledgeable agent about coverage. And, if you have additional questions about your employer responsibilities regarding the COVID-19 pandemic, you can find more information in our updated COVID-19 Help Center.