Employers May Not Bar Vulnerable Workers In An Effort To Protect Them

On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) issued new guidance for employers reopening workplaces during the ongoing COVID-19 Pandemic. 

Most prominent, the EEOC opined that employers may not "involuntarily" exclude employees over the age of 65, even if done with the "benevolent" aim to protect those in an age group who are at an increased risk of contracting the virus.  Doing so would run afoul of the Age Discrimination in Employment Act, which precludes adverse actions solely because of age.  However, employers are "free to provide flexibility to workers age 65 and over … even if it results in younger workers ages 40-64 being treated less favorably… ."  This conforms with the recommendations of the CDC's May 20, 2020 guidance, which addressed accommodating employees who due to age or medical condition are at a higher risk.

Similarly, the EEOC noted that employers are permitted, under both the Americans with Disabilities Act (ADA) and the Rehabilitation Act, to invite all employees to request flexibilities or accommodations, but cautioned against treating employees in different EEO classes differently.

Beyond opining on older employees' presence in the workplace, the guidance addressed other sticky situations employers may face:

• As with older workers, an employer may not ban pregnant employees from the workplace. However, pregnancy-related medical conditions may be disabilities under the ADA, which may require accommodation. Similarly, Title VII, as amended by the Pregnancy Discrimination Act, mandates pregnant employees be treated the same as similarly situated individuals who may be receiving accommodations.

• Employees are not entitled to accommodation under the ADA in order to avoid exposing a family member who is at a higher risk of contracting the virus.
• An employee requesting alternate methods of health screening may constitute a request for reasonable accommodation under either the ADA or the Rehabilitation Act. If requested for religious reasons, an accommodation may likewise be required under Title VII.
• Employers may provide flexibilities for employees with school age children due to school closures or distance learning as long as they do not treat employees differently based on sex. For example, female employees cannot be given more favorable treatment than male employees based on an employer's assumptions about caretaking responsibilities.
• Employers must treat harassment occurring remotely (via telechat or otherwise) just like on-site harassment, and particular alert should be given to derogatory or hostile remarks directed at employees who are or perceived to be of Chinese or other Asian national origin.