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Discrimination, Harassment, and Accommodations During a Pandemic, Part 2: What Employers Should Know About the EEOC’s Latest Guidance

By Katherine L. Wood, Esq.

In Part 1 of this article series, we discussed new guidance released by the Equal Employment Opportunity Commission (“EEOC”), which focused primarily on workplace flexibility, reasonable accommodations, and unlawful harassment. 

In Part 2 of this series, we will focus on the new EEOC guidance related to age, sex, and pregnancy discrimination issues that may arise as the result of the pandemic.  The full EEOC guidance can be found here.  As a reminder, the EEOC has updated its guidance on 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.  This article will focus on issues 6-9.

During the development of this article series, on June 17, 2020, the EEOC released additional guidance on employers’ use of COVID-19 antibody testing.  The final portion of this article discusses that guidance.

6.         ADEA protections for employers at high-risk for contracting COVID-19

Per CDC guidance, some individuals over the age of 65 may be particularly susceptible to contracting COVID-19.  This concern may lead to employees over 65 requesting accommodations such as teleworking.  While the ADEA protects employees over 40 years of age from employment discrimination, the ADEA does not include a right to reasonable accommodations for older workers.  However, if the employee is over 65 and also has an underlying health condition which makes him/her more susceptible to contracting COVID-19, the employer should offer an accommodation based on the employee’s disability rather than his/her age.

The EEOC reminds employers to be mindful that they cannot purposefully exclude individuals over 65 years old from work simply to protect the employee from harm.  This includes requiring employees over 65 years old to continue teleworking while younger employees are permitted to return to the workplace.  Again, however, the EEOC urges employers to remain flexible and consider providing flexibilities to older employees even where such a flexibility is not legally mandated.

7.         Sex-based discrimination when offering childcare accommodations

Employers cannot treat their employees differently on the basis of sex.  This is true for childcare leaves and accommodations as well.  If an employer wishes to provide certain flexibilities, such as teleworking, to employees for childcare reasons, the employer must consistently apply the flexibilities to all employees.  For example, the employer cannot give more favorable treatment to female employees than to male employees.

8.         Discrimination against pregnant employees

Under Title VII, sex-based discrimination includes discrimination based on pregnancy.  Employers must be sure to treat their pregnant employees equally to those employees who are not pregnant.  Employers cannot exclude pregnant employees from work out of a concern for the employees’ safety.

9.         Accommodations for pregnant employees during the pandemic

In certain circumstances, employees who are pregnant may be entitled to a reasonable accommodation.  Under the ADA, pregnancy-related medical conditions may constitute a disability.  If an employee with a pregnancy-related medical condition makes a request for an accommodation, the employer must consider the accommodation under its usual ADA analysis.

Title VII also offers pregnant workers protection from discrimination and requires that pregnant employees (and employees affected by childbirth and related conditions) be treated the same as other employees who are similar in their ability or inability to work.  Thus, pregnant employees may be entitled to modifications to their job duties, including teleworking, modified work schedules, and taking leave, provided that similar modifications are offered to other employees who have similar work abilities or inabilities.

Requiring Antibody Testing of Employees

Antibody tests check an individual’s blood by looking for antibodies, which can show if an individual had a past infection with the virus that causes COVID-19.  The updated EEOC guidance makes clear that employers may not require employees to undergo antibody testing for COVID-19 as a condition for returning to work.  At this time, antibody testing is not “job related and consistent with business necessity” as required by the ADA.  This decision is consistent with the CDC’s guidelines that antibody testing “should not be used to make decisions about returning persons to the workplace.”   However, employers should remember that COVID-19 viral testing (to determine if someone has an active case of COVID-19) is permissible under the ADA.

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