Updated EEOC COVID-19 Guidance: Additional Return to Work Considerations

June 18, 2020

On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) released further updated guidance regarding compliance with EEO laws and the COVID-19 pandemic. In particular, the guidance offers additional information regarding employee accommodations under the Americans with Disabilities Act (ADA), flexible work arrangements for employees, and limitations on involuntary exclusions from the workplace. We offer a summary of the updates to the guidance below (a summary of the remainder of the EEOC guidance is available here).

COVID-19 Related Accommodations

The guidance addresses whether an employee is entitled to an accommodation in order to avoid exposing a family-member who is at higher risk of contracting COVID-19 due to an underlying medical condition; whether employers must accommodate alternative methods of COVID-19 screening due to an employee’s medical condition; and whether employers can offer accommodations to higher-risk employees. Specifically:

  • The ADA does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member, although the employer may offer additional flexibilities beyond what the law requires.

  • Employers should treat employee requests for an alternative method of COVID-19 screening the same as any other request for a reasonable accommodation by an individual with a disability. And if the requested accommodation is easy and inexpensive, the employer might voluntarily make this option available to anyone who asks, without going through an interactive process. 

  • Similarly, if an employee requests an alternative method of screening as a religious accommodation, the employer should determine if an accommodation is available.

  • Although individuals age 65 and over are at higher risk for contracting a severe case of COVID-19, employers should not involuntarily exclude an employee who is 65 or older from the workplace. Although individuals age 65 and older are not automatically entitled to an accommodation because of their age, employers are still free to provide them with flexible work arrangements. 

  • Although employers may not involuntarily exclude a pregnant employee from the workplace, pregnant employees may have a right to a reasonable accommodation: Pregnancy-related medical conditions may qualify as a disability under the ADA and Title VII requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work, and may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave. (The Massachusetts Pregnant Workers Fairness Act also requires employers to provide reasonable accommodations to employees for pregnancy and pregnancy-related conditions.)

Pandemic-Related Harassment

The EEOC reiterated that managers should be alert to demeaning, derogatory, or hostile remarks directed towards employees who are (or are perceived to be) of Chinese or other Asian national origin, including remarks about the coronavirus or its origins. Employers should also ensure that managers understand how to recognize harassment, and that harassment can occur electronically as well as in-person. 

  • For example, if an employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another employee, the employer should take the same actions it would take if the employee was in the workplace.

Employers may also consider sending a reminder to their entire workplace that harassment is prohibited and invite anyone who experiences or observes workplace harassment to report it to management. 

Inviting Employees to Request Flexible Work Arrangements

As a best practice, and in advance of employees returning to the workplace, employers may make information available to all employees about who to contact if they wish to request an accommodation for a disability when they return to workplace (even if their return date is uncertain). Receiving these requests early allows the employer to start the interactive process and determine appropriate accommodations prior to the employee’s return. 

Employers may also send a general notice to all employees who are returning to the workplace that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. Although public health concerns suggest that employers should, if possible, accommodate individual requests for flexible work arrangements, employers should be careful to treat all requests uniformly to avoid claims of disparate treatment unless a legitimate job-related reason justifies a departure from the norm.

Stay tuned for future alerts on these developing issues. For assistance preparing your workplace to resume operations, contact  Margaret H. Paget, Allyson Kurker, or Eileen Henderson at Kurker Paget LLC.