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Returning to Work: EEOC Guidance on COVID-19

Brooklyn Sewell oversees all Administration, Financial & Human Resources matters at Peak Performance. She is a young professional currently pursuing her Master’s in Business Administration with a concentration in Human Resources.

In this extraordinary time, the laws enforced by the US Equal Employment Opportunity Commission (EEOC)--Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, continue to apply.

The EEOC continues to issue rounds of Q&As to offer guidance to employers on the Americans with Disabilities Act (ADA) and other equal employment opportunity laws during the COVID-19 pandemic. On June 11th, the EEOC expanded their guidance to include COVID-19 antibody tests, “high risk” employees, accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace.

Key Takeaways

Accommodating Employees with High-Risk Families. The EEOC confirmed that the Americans with Disabilities Act (ADA) does not require employers to provide accommodations to employees that have family members who are high risk for COVID-19.

Returning to Work/Employee Accommodations. The EEOC suggests that employers provide information to employees advising them that they may request a reasonable accommodation upon returning to work. The EEOC suggests that employers include the medical conditions identified by the Centers for Disease Control and Prevention (CDC) that are higher risk for COVID-19 and state that “the employer is willing to consider The EEOC suggests that an employer includes in the notice a list of the medical conditions identified by the CDC the identifies people at a higher risk for COVID-19 and state that “the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.” Employers are not required to provide a reasonable accommodation if it poses an "undue hardship”.

Antibody Testing. Antibody testing is prohibited medical tests under the ADA because they are not considered to be job-related and consistent with business necessity. Employers cannot mandate employees to take an antibody test before allowing an employee to return to work.

Discrimination & Harassment. Managers should be vigilant in preventing and resolving pandemic-related harassment against employees who are Asian or are perceived to be Asian. The EEOC recommends that employers ensure managers are “alert to demeaning, derogatory, or hostile remarks” directed to such employees and that employers train managers on how to recognize harassment and resolve issues before they “rise to the level of unlawful discrimination.” Employers should consider reminding all employees of Title VII prohibitions on harassment and have a process for reporting incidents.

Age. The CDC has stated that individuals over the age of 65 are at a higher risk for COVID-19; however, the Age Discrimination in Employment Act (ADEA) does not require employers to provide reasonable accommodations to employees who are 65 and older. Reasonable accommodations are only required for employees over 65 that have a medical condition or other disability that puts them at higher risk for severe illness. The EEOC notes that the ADEA prohibits discrimination against employees age 40 or older and therefore prohibits an employer “from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”

Caregivers & Family Responsibilities. If Employers are providing schedule flexibility or other benefits to employees with school-aged children due to school closures, employees need to be sure they are not treating employees differently because of their sex. For instance, employers cannot give female employees more favorable treatment than male employees due to a gender-based assumption regarding caregiving responsibilities.

Protection for Pregnant Employees. The EEOC warned employers of involuntarily excluding employees from the workplace or treating them differently because of pregnancy. If a pregnant employee makes a request for reasonable accommodation, the employer must consider it under the usual ADA rules.

The latest COVID-19 update from the EEOC provides additional clarity for employers restarting or ramping-up their workplace. Employers should still consider possible inconsistencies with local, state, and federal agencies. As businesses return to "normal" operations, having a plan in place is essential and requires a careful review of the known and possibly legal obligations relative to your specific situation.

Peak Performance, Inc. can help your business develop an Infectious Diseases Plan in our Workplace Infectious Disease Prevention Training, which also includes 1:1 consulting for your policymakers. Your workforce is our priority, which is why we have also developed an Employee Infectious Disease training that will provide your employees with an understanding of how to safely operate in a healthy and confident way during a pandemic. Contact us today for a free consultation.

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