Discrimination, Harassment, and Accommodations During a Pandemic, Part 1: What Employers Should Know About the EEOC’s Latest Guidance

By Katherine L. Wood, Esq.

With many regions now in Phase 3 of New York’s reopening plan, employers should be aware of potential claims they may not immediately view as COVID-19 related, such as harassment of employees of Asian heritage. Going forward, employers should continue to be mindful of their responsibilities under the Americans with Disabilities Act (“ADA”), Age Discrimination in Employment Act (“ADEA”), and other non-discrimination laws. 

Late last week, the Equal Employment Opportunity Commission (“EEOC”) released new guidance to assist employers in analyzing the following issues: (1) employees with family members who are at a high risk of contracting COVID-19; (2) pandemic-related harassment of employees of Asian national origin; (3) harassment of co-workers while teleworking; (4) flexibility in work arrangements such as teleworking; (5) alternative methods of screening employees; (6) ADEA protections for employees at high-risk for contracting COVID-19 due to age; (7) sex-based discrimination when offering childcare accommodations; (8) discrimination against pregnant employees; and (9) accommodations for pregnant employees during the pandemic.  The full EEOC guidance is available here

Part 1 of this two-part article series covers issues 1-5 above, and thus focuses primarily on workplace flexibility, reasonable accommodations, and unlawful harassment.  Part 2 of this series, which will be available in the coming days, will discuss issues 6-9 above and focus on age, sex, and pregnancy discrimination issues that may arise as the result of the pandemic.

1.         Employees with family members who are at a high risk of contracting COVID-19

Employers may find that employees with family members who are at a higher risk of contracting COVID-19 are seeking accommodations under the ADA.  These employees may have a spouse, child, or other relative in their household who has underlying medical conditions rendering the relative more susceptible to contracting COVID-19.  Do employers need to accommodate such requests from employees?  The answer is fairly simple.  An employee is not entitled to ADA accommodations if the employee herself is not disabled. 

However, the EEOC reminds employers that they are free to provide working flexibilities, such as extending teleworking, to employees if the employer chooses to do so.  If an employer decides to offer such flexibilities, it must be careful to ensure that doing so does not inadvertently discriminate against a protected class.  For example, the employer cannot provide flexibilities to a woman requesting to telework due to a high-risk relative yet deny the same flexibilities to a man requesting to telework for the same reasons.  Employers must apply their working flexibilities consistently and without regard for any protected characteristic. 

2.         Pandemic-related harassment of employees of Asian national origin

Employers should be on alert for any demeaning, hostile, or derogatory remarks toward (or about) employees who are of Asian national origin or who are perceived to be of Asian national origin.  This includes statements about COVID-19 or the disease’s origins.  Title VII of the Civil Rights Act of 1991 (“Title VII”) protects employees from discrimination or harassment based on race, color, religion, sex, and national origin, so employers must be attentive to all harassment or discrimination on these bases.

Such harassment or discrimination may originate from an employee’s co-workers, but may also originate from contractors, patients, customers, and clients.  Employers need to take complaints of harassment or discrimination based on characteristics protected by Title VII very seriously, have a mechanism in place for investigating and resolving such complaints, and act quickly when a complaint of unlawful discrimination or harassment arises. 

3.         Harassment of co-workers while teleworking

While many employees are still teleworking, employers must be aware that unlawful harassment or discrimination that occurs electronically such as via email, video call, or telephone is prohibited.  The same non-harassment and non-discrimination rules that apply in the workplace should also apply to the teleworking space. 

4.         Flexibility in work arrangements such as teleworking

The EEOC encourages employers to offer flexibility in work arrangements to all employees in advance of returning to the workplace.  For example, some employees may feel more comfortable continuing to telework until more restrictions are lifted.  While the employer is not obligated to offer these employees accommodations under the ADA, employers may offer such flexibilities if they wish to do so.

All employees should have access to the employer’s policies concerning requests for reasonable accommodations under the ADA.  However, for non-disabled employees who do not qualify for accommodations under the ADA, the employer may send a general notice to employees stating that it is willing to consider flexibilities on an individual basis. 

5.         Alternative methods of screening employees

COVID-19 screening, such as measuring employees’ temperatures, should be part of all employer’s safety plans upon reopening.  However, what if an employee requests an alternate method of screening?  If the request is based on a health condition, the employer should consider the request one for a reasonable accommodation under the ADA.  Employers should work with these employees to determine what a reasonable alternative screening method may be.  Some employees may request alternative screening methods due to their religious beliefs.  In those cases, employers should also determine if an accommodation is available.

Stay tuned for Part 2 of this series, which will be available in the coming days and will discuss age, sex, and pregnancy discrimination issues that may arise as a result of the pandemic.

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