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EEOC updates workplace COVID-19 guidance


The Americans with Disabilities Act does not require employers to accommodate workers who want to avoid exposing family members who are at higher risk of severe illness from COVID-19, the U.S. Equal Employment Opportunity Commission says in the latest update of its pandemic guidance.

The EEOC first issued guidance in March on dealing with the virus without risking violating antidiscrimination laws and has issued subsequent updates.

In guidance issued Thursday, the EEOC said the ADA does not require an employer to accommodate an employee without a disability based on a family member’s or other person’s disability-related needs, including offering them telework.

“Of course, an employer is free to provide such flexibility if it chooses to do so” but should be careful not to offer additional flexibilities on a disparate basis, the guidance says.

The updated guidance also says an employer cannot exclude an employee from the workplace involuntarily because of pregnancy.

Employers, though, must consider requests for reasonable accommodation “under the usual ADA rules” due to a pregnancy-related medical condition, the guidance says.

Pregnant employees may also be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided other employees, it states.

Other new guidance includes:

  • The Age Discrimination in Employment Act does not include a right to reasonable accommodation for older workers due to age, but employers are free to provide flexibility to workers age 65 and older, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.
  • Managers should be alerted to demeaning, derogatory or hostile remarks directed at employees who are of Chinese or other Asian national origin and be instructed to quickly identify and resolve potential problems.
  • Employers should act against teleworking employees who send harassing emails to other workers.
  • The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about whom to contact to request accommodation for a disability that they need upon their return to the workplace, even if no date for their return has been announced. 
  • Employee requests for an alternative method of screening because of a medical condition upon entering the worksite should be considered a reasonable accommodation. Employers may request medical documentation to support the request, if necessary.  Employers should also determine if an accommodation is available under Title VII of the Civil Rights Act of 1964 if an alternative screening method is requested as a religious accommodation.
  • Employers may provide any flexibility to teleworking employees, so long as they are not treating workers differently based on sex or other protected characteristics. For example, under Title VII, female workers cannot be given more favorable treatment because of a gender-based assumption about who may have caretaking responsibilities for children.