Workers complying with COVID-19 guidelines.

EEOC Updates COVID-19 Return to Work Guidance

By Douglas Lipsky

In June, the Equal Employment Opportunity Commission (EEOC) updated its March 18, 2020 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws. The updated guidance addressed a number of employment-related concerns as businesses reopen, including age discrimination, disability accommodations and workplace harassment. 

Older Employees Returning to the Workplace

The EEOC warned employers that barring older workers from returning to the workplace to reduce COVID-19 risk would violate the Age Discrimination in Employment Act  (ADEA). 

Although workers over 65 are at an increased risk of severe COVID-19 illness, the EEOC said that the ADEA bars businesses from excluding anyone from the workplace solely because of their age, even if the employer’s intentions were benevolent.

However, the EEOC also said that employers are “free to provide flexibility” to employees over 65 for voluntary measures, such as temporary reassignments, to reduce the risk. The agency  noted that the ADEA does not prohibit this, even if it results in younger workers in the 40-64 age range being treated “less favorably based on age in comparison.”

Reasonable Accommodations Under the ADA During the Pandemic

The updated guidance also addressed whether an employee can request a reasonable accommodation under the ADA to avoid potentially exposing a family member to COVID-19 who has a medical condition that places them at higher risk of serious illness. In short, the EEOC said that the ADA does not require employers to accommodate an employee without a disability based on any disability needs of a family member. 

As an example, an employer is not required to accommodate a non-disabled employee’s request to telecommute because he or she lives with someone who is at a greater risk of severe illness from the virus due to an underlying medical condition. 

In addition, the EEO reiterated that businesses cannot involuntarily bar pregnant women from returning to work. Additionally, employers may be required to provide pregnant workers with reasonable accommodations under the Americans with Disabilities Act (ADA) or the Pregnancy Discrimination Act (PDA).

COVID-19 Related Harassment

The EEOC reminded employers with telecommuting policies that incidents of harassment via email should be treated the same way they would be if the alleged misconduct occurred on-site. In addition, the commission specifically advised employers of their obligations under Title VII to prevent harassment against individuals of Chinese or Asian descent regarding the origins of the coronavirus. In particular, managers should be alert to hostile comments against them by coworkers or visitors to the workplace (e.g. vendors, clients).

The Takeaway

The COVID-19 pandemic is an unprecedented challenge that raises novel employment law issues. The best way for employers and employees to understand their rights and obligations during this challenging time is to consult with an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.