212.627.8100The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces laws against workplace discrimination including the Americans with Disabilities Act (ADA), recently published multiple updated guidelines in anticipation of stay-at-home orders being lifted and employees returning to the workplace. The EEOC’s update specifically addresses the rights of employees to request accommodations and how employers should handle various forms of workplace discrimination or harassment as it relates to COVID-19.
Here are the key take-aways:
As an employee, can you request accommodations under the ADA to avoid exposing high-risk family members?
No. The ADA’s protections do not extend to the disability-related needs of an employee’s family member or other persons the employee is associated with. However, an employer may provide these accommodations for its employee if it chooses to.
How do employees request flexible work arrangements from their employer as they return to work?
Requests for flexibility in work arrangements as you return to work should be directed to your employer. The ADA and the Rehabilitation Act encourage employers “to make information available in advance to all employees about who to contact—if they wish – to request accommodation for a disability that they may need upon return to the workplace.” Employers must consider accommodations on an individualized basis.
Can an employee request an alternative method of screening when entering the worksite due to a medical condition?
Yes. Requesting an alternative screening method is an example of a request for reasonable accommodation and an employer should proceed as they would for any request under the ADA or the Rehabilitation Act. If an employee’s medical condition is not previously known by the employer, the employer may request that the employee provide medical documentation to support the request.
Individuals over the age of 65 have been categorized as high-risk and the CDC has recommended additional protections for employees in this group. Do federal employment discrimination laws provide protections and accommodations for these employees?
The Age Discrimination in Employment Act (ADEA) protects employees age 40 and older from workplace discrimination based on age. However, this legal protection does not extend to provide reasonable accommodations for older workers due to age. Therefore, if an employee 65 years and older has a medical condition that could bring them under the protections of the ADA, the employee’s request should be made for a reasonable accommodation for their disability rather than their age.
Can an employer provide modifications or other benefits to employees who have the responsibility of caring for school-age children?
Yes. An employer may, but is not required to, provide accommodations based on an employee’s need to care for children who are unable to attend school or other forms of child care.
For employees who are not granted accommodations for child care, employees may want to consider their rights under the Families First Coronavirus Response Act, which is discussed in a prior LR What You Need to Know Now.
Is there a right to accommodation based on pregnancy during the pandemic?
Yes. The right to accommodation based on pregnancy is guaranteed under two different federal employment discrimination laws. First, accommodations based on pregnancy-related medical conditions are protected under the ADA. Second, under Title VII, as amended by the Pregnancy Discrimination Act, a “pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.”
Are employers required to address pandemic-related harassment?
Yes. It is a violation of the federal EEO laws for an employee to discriminate or harass a co-worker “based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.” As it relates to the pandemic, the EEOC has suggested that employers should be alert to “demeaning, derogatory, or hostile remarks that are directed at employees who are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origin.”
Can employers require coronavirus antibody testing for employees before return to work?
No. The EEOC has determined that antibody testing for employees cannot be made mandatory because it does not meet the ADA’s standard of being “job related and consistent with business necessity.” Therefore, results from an antibody test “should not be used to make decisions about returning persons to the workplace.”
The CDC has stated that, “a positive antibody test is presumed to mean a person has been infected with SARS-CoV-2, the virus that causes COVID-19, at some point in the past. It does not mean they are currently infected.” It is important to note that the antibody test is different from the coronavirus detection test, which the EEOC has permitted mandatory testing of by employers.
For more information on previous guidelines released by the EEOC during the COVID-19 pandemic, see two prior LR What You Need to Know Now articles here and here.