EEOC Reopening Guidelines

June 17, 2020

In mid-March, the U.S. Equal Employment Opportunity Commission (EEOC) began releasing guidance online regarding issues employers face as a result of COVID-19. The EEOC has been periodically updating and adding to the guidelines, which can be found here. Last week the EEOC added to their guidelines, with questions and answers covering a number of crucial issues that may arise in the workplace. These updates provide insight on harassment, discrimination, exclusion of employees from the workplace, and accommodations.

Harassment

The EEOC advises that employers consider sending out an organization-wide notice reminding employees that Title VII prohibits racially-motivated harassment. Employers ought to indicate that harassment is not tolerated, should be reported to supervisors, and can result in termination. Harassment can occur at work or online, and can involve employees, customers, vendors, and/or patients, depending on the type of organization. Supervisors should remain vigilant for any derogatory statements made about employees perceived to be of Asian national origin, or about how or where the virus originated.

If any type of harassment is occurring online while employees are working from home during the pandemic, employers should engage in the same type of intervention as if the harassment were occurring in the workplace.

Exclusion from the Workplace

Employers may not exclude pregnant individuals or individuals over the age of 65 from the workplace, even if the employer believes they are helping an employee who is at increased risk of severe illness from COVID-19. Employers  are permitted to provide greater latitude to older employees, even if it results in disparate treatment of younger employees.

Sex Discrimination

Employers need to be cognizant when granting flexibility to employees with children who would normally be attending school. Gender cannot be the basis for an employee receiving more flexibility based on assumptions regarding domestic responsibilities.

Accommodations

The EEOC recommends that employers send a notice to all employees informing them that they will be going over requests for accommodations on a case-by-case basis. Alternatively, employers may choose to make this information available now even if there is no plan to return to the workplace so that the employer may begin the process of working with the employee at this time. CDC guidelines also underscore the importance of employers being flexible with employees who request accommodations due to age or a medical condition, as this may put certain individuals in a “higher risk” category.

Some employers have been screening employees returning to the workplace for COVID-19 before entry is permitted. An employee might request another method of screening due to a medical condition. In this circumstance, employers must treat the request like any other request for an accommodation.

High-Risk Family Members

Employees might, understandably, be concerned about contracting COVID-19 and passing it along to other members of their household, particularly if their family members are considered part of a group at higher risk for severe illness as identified by the CDC here. The EEOC advises that the Americans with Disabilities Act does not require employers grant accommodations to employees without a disability who fear transmitting the virus at home. However, if possible, employers may choose voluntarily to grant those requests, so long as they are not engaging in disparate treatment on a basis protected by the EEOC.

Conclusion

As Americans return to work, the EEOC’s guidance will help ensure that workers are treated in accordance with the law in a rapidly evolving, unprecedented landscape.

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