The Equal Employment Opportunity Commission (“EEOC”) recently issued new COVID-related guidance pertaining to the prevention of discrimination in the workplace. The EEOC provided specific advice on how to handle employees who are 65 and older, pregnant employees, and employees of Chinese or Asian heritage. Further, the new guidance iterated the need to protect employees from harassment in electronic communications and clarified whether the ADA requires accommodations for employees who have family members that are more susceptible to COVID-19.
Employees Aged 65+
The EEOC cautioned employers from mandating that employees aged 65 and older refrain from returning to work when other employees have returned. The EEOC stated employers are “free to provide flexibility,” allowing workers 65+ to work from home even if younger workers are not given the same option. However, even if employers have good intentions and merely wish to keep those most at-risk for the virus from returning, employers must not order these older employees to stay home.
The EEOC gave similar advice regarding pregnant employees. Employers may not prevent pregnant employees from returning to the office. In addition, employers may be required to provide reasonable ADA accommodations to allow pregnant employees to return to work.
Employees of Chinese or Asian Heritage
Due to the purported origination of COVID-19 in China, the EEOC has noted that employees of Chinese or Asian heritage are especially at-risk for workplace harassment or mistreatment. The EEOC called on employers to immediately address any “demeaning, derogatory, or hostile remarks” toward employees based on their heritage.
Off-Site Workplace Harassment
Furthermore, the EEOC directed employers to treat any reports of harassment made electronically by an employee who is teleworking the same as if the report was made by a person working on site. Harassment is not allowed through “emails, calls, or platforms for video or chat communication and collaboration.”
Employees with At-Risk Family Members
Employees who have family members that are particularly at risk for COVID-19 do not fall under the ADA’s requirement for reasonable accommodations. Therefore, employers are not required to provide reasonable accommodations to employees seeking to avoid potentially exposing their family members to the virus. Nevertheless, even though employers are not legally required to provide the accommodations, they are free to provide accommodations. The EEOC proceeded to caution against differential treatment of those in EEO protected classes.
Please contact your KDDK attorney or any member of the KDDK labor and employment law team for additional information and individualized guidance on this or any related topic.
* Heather M. Heck, KDDK Summer Clerk, contributed to this article.