[06/15/2020 UPDATE] On June 11, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued additional guidance relating to reasonable accommodations as employees prepare to return to the workplace in the midst of the coronavirus pandemic.
The guidance reminds employers that, pursuant to the Americans with Disabilities Act (“ADA”) and Rehabilitation Act, they may make information available to all employees about who to contact to request a reasonable accommodation that may be required upon return to the workplace. The information provided by the employer may include all of the Centers for Disease Control (“CDC”)-listed medical conditions that place employees at a higher risk of serious illness if the contact COVID-19.
However, the EEOC clarified that an employee is not entitled to an accommodation pursuant to the ADA to avoid exposing a family member who is at a higher risk of severe illness from COVID-19 due to an underlying medical condition. According to the EEOC, even though the ADA prohibits discrimination based on an employee’s association with an individual with a disability, that protection is limited to disparate treatment or harassment, and does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member. The EEOC made clear that “an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.” The guidance also notes an employer may offer flexibility to employees, but must avoid disparate treatment based on a protected basis.
The guidance also clarified that the Age Discrimination in Employment Act (“ADEA”) prohibits a covered employer from involuntarily excluding an employee from the workplace due to being 65 or older, even if the employer’s intentions are benevolent. Likewise, the EEOC reminded employers that they cannot involuntarily exclude pregnant employees from the workplace due to the pandemic. The guidance reminds employers, however, that both groups of workers – those over the age of 65 and those who are pregnant – may be entitled to reasonable accommodations.
The EEOC’s guidance is available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
If you believe your employer has denied you a reasonable accommodation, or discriminated against you based on your membership in a protected class, contact MSE at info@mselaborlaw.com.
[04/25/2020 ORIGINAL] On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding COVID-19 in the workplace, both public and private, to reflect recommendations from the Center for Disease Control (CDC) on reopening. The updated guidance advises that employers will be permitted to administer tests for COVID-19, and its symptoms, to determine if employees demonstrate any COVID-19 symptoms before permitting them to enter the workplace and without running afoul of the Americans with Disabilities Act (ADA). Employers will also be able to maintain a record of these tests so long as confidentiality is preserved. However, employers are prohibited from administering any tests in a discriminatory fashion, including for reasons based on national origin or age. Employees and Unions may also be able to negotiate over the procedures for testing and the conditions under which any medical tests are to be administered.
Many employers will also likely require returning employees to wear personal protective equipment in the workplace. If an employer requires workers to wear PPE such as masks or gloves, employers must also make reasonable accommodations with respect to this equipment for workers’ disability-related needs. Examples of some possible reasonable accommodations include providing non-latex gloves and providing an interpreter for hearing-impaired individuals who use typically use lip reading. Employers should also consider how they will respond to workers who are unable to wear PPE due to a disability.
If employees still cannot report to work, despite their workplace being reopened, because of a stay-at-home order, they are vulnerable, or are required to continue caring for a dependent child whose school or day care has closed due to COVID-19, the employee may be eligible to use the paid leave options provided by the Families First Coronavirus Response Act. Similarly, if employees have the capability and are eligible to telework, they may be able to negotiate with their employer to continue working remotely as a reasonable accommodation until they are able to return to the work site, so long as remote work allows the employee to perform the essential functions of their job.
In addition, employers will likely attempt to overhaul workplaces to comply with social distancing requirements by reassigning work stations, making schedule adjustments, rearranging office spaces, and installing shields between work stations. Employers, Unions, and workers should also think about how workers will use places where social distancing may not be possible, like elevators, restrooms, and break areas.
While these changes will be intended to limit employee interaction and permit employees to safely return to the workplace, Unions should nevertheless request to bargain over these work site changes to the extent permitted by law.
Further, if a Union has a collective bargaining agreement which cover returns to work after a reduction in force, or sets forth similar procedures, the Union should engage with the employer to ensure that all negotiated procedures are being properly followed.
For more information about your workplace rights, including collective bargaining rights, and how to protect them upon your return to work, please view the General COVID-19 Resources by clicking the links on the sidebar.
