By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On June 11, 2020, the EEOC updated its Technical Assistance Q&A webpage to address several new questions submitted by employers and their counsel regarding the application of the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other EEO-related laws to employees returning to work after the lifting of the COVID-19 shelter-in-place orders. The Commission’s latest guidance addresses issues such as reasonable accommodations for employees returning to work, accommodating employees more “at-risk” of the coronavirus, discrimination issues related to providing flexible schedules or telework options, and dealing with pandemic-related harassment. The EEOC’s latest guidance is a critical read for all employers returning employees to the workplace and providing alternative work arrangements.  

Latest EEOC COVID-19 Guidance On Reasonable Accommodations

One of the primary focuses of the Commission’s new guidance is the accommodation of employees with various COVID-19 concerns after they have returned to work. One new question addressed by the EEOC is whether an employee is entitled to a reasonable accommodation to avoid exposing one of their family members who is more at risk of the coronavirus. The new guidance informs employers that they do not need to provide accommodations to employees relative to their family member’s at-risk status under the ADA.

The Commission also advises employers that they may issue general advisories to their employees informing them of who to contact in the organization to request accommodations or other flexibilities in working arrangements. Further, the new guidance cautions employers that employees who need alternate screening measures due to a medical condition could be protected by the ADA, and employers should engage in the interactive process to identify a suitable accommodation for such employees.

Accommodations For Employees More At Risk Of COVID-19

The Commission’s newest guidance also addresses questions regarding accommodating employees who are more at risk of the virus, including employees over 65 or pregnant employees. The EEOC advises employers that they cannot exclude at-risk employees from the workplace or other work-related activities involuntarily, as such exclusion could run afoul of the Age Discrimination in Employment Act (“ADEA”), the ADA, or the Pregnancy Discrimination Act (“PDA”). Further, accommodations requested by more at-risk employees should be handled in accordance with the ADA or analyzed pursuant to the PDA to ensure that employees protected by such laws are not being treated disparately compared to other employees in the workplace.

Pandemic-Related Harassment And Discrimination

The EEOC’s guidance further addresses issues related to harassment in the workplace or via email for teleworking employees. The Commission cautions employers to be alert for pandemic-related harassment, particularly harassment of Asian employees. The EEOC recommends that employers train their managers and executive staff to recognize and address such harassment, even harassment from third parties coming into the workplace. Further, employers should consider issuing a statement reminding employees that harassment is not tolerated in the workplace. Additionally, the EEOC’s guidance advises employers that harassment conducted over email or video by employees who are teleworking should be addressed in the same way as harassment occurring in the workplace.

Finally, the Commission’s latest warns employers to keep an eye on any disparate treatment of employees in granting flexible work schedules or telework arrangements, advising that employers should not grant such benefits on the basis of any protected status, including gender.

Implications For Employers

The EEOC’s new guidance is the latest installment in the EEOC’s ongoing effort to provide clarity for employers on the application of the ADA, the Rehabilitation Act, and other EEO laws to COVID-19-related issues. The Commission’s additions to its Q&A page address a multitude of questions submitted to the EEOC by employers and employment counsel, including several questions submitted by Seyfarth Shaw. Employers dealing with these issues should carefully read the newest guidance as well as details on the EEOC’s other recent changes, all of which have been tracked here.