By James Beyer, Associate Counsel

In recent weeks, the U.S. Equal Employment Opportunity Commission (EEOC) has continued to guide employers on how to manage health concerns and maintain worker safety during a transition back to the workplace. In its latest publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the EEOC provides valuable information regarding disability-related inquiries and medical exams, confidentiality of medical information, hiring and onboarding, reasonable accommodation, and more.

To help organizations understand the latest employment rules and government mandates surrounding the pandemic, our Associate Counsel, James Beyer, shared his thoughts on the legal complications that could arise from a return to the workplace.

Is an employee entitled to an accommodation under the ADA to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

Millions of Americans are fearful of physically returning to worksites because of the negative health impact it may have on themselves or their families. This is a perfectly reasonable concern. As a matter of law, however, the fear of exposing a high-risk family member to COVID-19 does not legally entitle the employee to an accommodation under the ADA. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation to protect a family member with a disability from potential exposure to the coronavirus.

The EEOC had previously been silent while employers grappled with this particularly contentious issue. Thankfully, the organization has since recently clarified its stance on this issue. As noted in the newest update to the guidance, the EEOC clearly states that “the ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom the employee is associated.” Essentially, that’s a long-winded way of saying that if the employee does not have a disability themselves, there is no legal obligation to accommodate him/her. Of course, an employer is free to provide such flexibilities if it so chooses, but it must be careful to do so consistently and equally.

Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?

No. Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even where an employer has a genuine concern for the pregnant employee’s health, it is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

Is an employee age 65 or older entitled to an accommodation under federal law simply because the CDC says these individuals are at a higher risk for a severe case of COVID-19 if they contract the virus?

No. Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers simply due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers covered by the ADEA (ages 40-64) being treated less favorably in comparison.

Workers aged 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. If they request a reasonable accommodation because of their disability as opposed to their age, the employer would be required to go through both the interactive and accommodation processes.

Keep in mind that the phrase “no good deed goes unpunished” often rings true in the world of employment law. For example, the EEOC notes in its guidance that if an employer seeks to involuntarily exclude a healthy older employee from the workplace, the employee might have an age discrimination claim under the Age Discrimination in Employment Act (ADEA). This can occur even if the employer acted for benevolent reasons such as protecting the employee due to a higher risk of severe illness from COVID-19.

This is based on the same principle discussed above in the pregnancy-related question. Organizations cannot single out employees based on a protected characteristic – like age or pregnancy status – and take certain employment actions against them without their agreement.

The Takeaway

While return-to-work efforts in the time of COVID-19 may be fraught with challenges, they are not insurmountable! Your business could receive unique requests that you have never gotten before, which will force your team to come up with creative solutions that you have never contemplated before. Ultimately, how employers respond to questions and concerns raised by employees will have a lasting impact on organizations.

The interplay of federal and state employment laws can prove to be complicated, so do not hesitate to involve your Legal and HR teams to help navigate these novel issues.

If you have a question about this blog or a suggested topic for a future legal article, you can email James at beyerj@aleroninc.com with “Legal Bytes” in the subject line.

For more workplace insights from our Acara team, be sure to check out our blog on our company website.