As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?
That’s the first of six coronavirus-related questions that the EEOC answered yesterday as part of its oft-updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
Were I to just cut and paste all of the new EEOC Q&A into this blog post, we’d go over 1000 words. And as tempting as it is just to do that and go to bed now, I’ll try to tighten it up for you.
How should employers go about inviting employees to seek return-to-work accommodations?
(Ok, too short).
You can inform employees (either all of them or just those designated to return to the workplace) about who to contact with accommodation requests should they need one. (You can even identify CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19.) Once that contact person receives an accommodation request, s/he should initiate a good-faith interactive process to discuss accommodation options.
What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?
Treat it as a request for a reasonable accommodation, whether under the ADA (disability) or Title VII (religious accommodation), and act accordingly.
Do you have to accommodate older employees under federal employment discrimination laws?
Not under the Age Discrimination in Employment Act (ADEA), but yes, if they have medical conditions that bring them under the protection of the ADA as individuals with disabilities. in other words, employees may request reasonable accommodation for their disability, not their age.
If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations?
Yes, treat men and women who may have caretaking responsibilities for children equally. Duh!
Or don’t. After all, this isn’t communist Russia. You have a choice. However your choice to discriminate will probably end with – wait for it – a charge of discrimination.
Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?
No, unless you like defending pregnancy discrimination lawsuits. However…
Is there a right to accommodation based on pregnancy during the pandemic?
Pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not.
Second, the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that 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. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
For more COVID-19 guidance from the EEOC, google “EEOC COVID-18 guidance.” Live a little! Google is smart enough to pick up your spelling mistake.