As we discussed here, the Equal Employment Opportunity Commission (“EEOC”) recently conducted a webinar regarding employment practices amidst the COVID-19 pandemic. During the webinar, the EEOC analyzed 22 employment-related questions. In the previous article, we addressed the first 11 questions of the webinar. We will now cover the last 11 questions for your review.
12) Are employers required to grant a request to telework from an employee who is 60 or older because the CDC says older people are more likely to experience severe symptoms if they get COVID-19?
No, but an employer should ensure differential treatment is not given to other employees (i.e., granting a request to telework for an employee that has an underlying health condition that the CDC has identified as more likely to experience severe symptoms).
13) The CDC list of people who are higher risk for severe illness if they contract COVID-19 includes a recommendation to monitor women who are pregnant. Based on this CDC recommendation, may an employer decide to lay off or place on furlough a woman who is pregnant but does not have COVID-19, or symptoms associated with the disease?
No, under Title VII of the Civil Rights Act, discrimination based on an employee’s pregnancy is considered discrimination based on sex. Therefore, decisions regarding layoffs or furloughs should not be based on pregnancy.
14) Conversely, do the equal employment opportunity laws require an employer to grant a request to telework from an employee who is pregnant because the CDC says there is a higher risk if she contracts COVID‑19?
No, under Title VII of the Civil Rights Act, pregnant women shall be treated the same as similarly situated individuals with the same ability or inability. However, there might be necessary reasonable accommodation for a pregnant employee under the Americans with Disabilities Act (“ADA”). While pregnancy itself is not considered a disability under the ADA, a condition caused by the pregnancy might justify reasonable accommodations.
15) What about issues related to discrimination based on national origin? For example, may an employer single out employees based on national origin and exclude them from the workplace due to concerns about possible transmission of COVID-19? May an employer tolerate a hostile work environment based on an employee’s national origin or religion because others link it to transmission of COVID-19?
No, under Title VII of the Civil Rights Act, employment discrimination based on religion or national origin is prohibited. At this time, employers should remind employees of the expansive nature of Title VII’s prohibitions.
16) Is COVID-19 a disability under the ADA?
At this time, it is unclear if COVID-19 is or in the future will be considered a disability under the ADA. Regardless, as discussed above, an employer may bar an employee from entering the workplace due to the virus’s “direct threat” on other employees.
17) What are an employer’s ADA obligations when an employee says that he or she has a disability that puts them at greater risk of severe illness if he or she contracts COVID-19, and therefore asks for a reasonable accommodation?
In these circumstances, an employer should consider this a request for a reasonable accommodation. As with all requests for a reasonable accommodation, an employer may verify the disability and that the accommodation is necessary. It should be noted, though, that disabilities that might be exasperated due to certain stressful circumstances may also qualify for reasonable accommodations, if verified.
Additionally, as with all requests for reasonable accommodations, an employer may deny the request if they find the accommodation to be an undue hardship. An undue hardship can be any significant expense or difficulty.
Due to the trouble health providers might have in producing certification at this time, employers should try to be flexible of the required documentation.
18) What are an employer’s ADA obligations to provide reasonable accommodation if an employee says that he lives in the same household as someone who, due to a disability, is at greater risk of severe illness if he contracts COVID-19?
An employee only has a right to a reasonable accommodation for his or her own disability. However, the employer should consider if they are treating other employees differently with similar requests.
19) What practical considerations should employers and employees keep in mind about the interactive process in the current COVID-19 situation?
The interactive process is the communication between the employer and employee once a reasonable accommodation request has been made. The employer and employee should openly communicate so that the employer receives the necessary information to make an informed decision on a reasonable accommodation request. During this uncertain time, employers should be prepared to provide prompt attention to requests and may even need to provide temporary accommodations.
20) When an employer requires some or all of its employees to telework because of COVID-19, or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations it provides to this individual in the workplace?
If a reasonable accommodation request is made, the employer and employee should discuss what accommodations are needed and why and whether the same or different accommodations will suffice. For example, some accommodations might already be available to the employee at home to enable them to do their job that they normally do not have at the workplace.
Additionally, when an employer is evaluating if an accommodation is an undue hardship, the employer should deliberate these requests differently than if they were at the workplace. Each reasonable accommodation should be considered depending on the different situations and circumstances of that employee.
21) Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. After such public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement?
An employer does not have to eliminate an essential function of the job just because they did during this public health crisis. Therefore, an employer may determine that teleworking is not a reasonable accommodation after the COVID-19 pandemic subsides.
22) Assume that, prior to the emergence of the COVID-19, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee continued to come to the workplace. However, after the COVID‑19 crisis has subsided and temporary telework ends, the employee renews his or her reasonable accommodation request for telework for reasonable accommodation. Can the employer refuse the request?
As with all ADA reasonable accommodations, the employer and employee should continue to have an open communication regarding the employee’s needs. At this time, an employer may want to consider this necessary telework period as a trial run for future reasonable accommodations.
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As the COVID-19 situation is rapidly developing, employers should continue to watch for additional guidance from the EEOC and/or local officials.
If you have any questions on issues discussed in or related to this post, please contact Dana Stutzman at dstutzman@wp.hallrender.com or (317) 977-1425 or your regular Hall Render attorney.
Special thanks to Claire Bailey, law clerk, for her assistance in preparing this article.
For more information on Hall Render’s Labor & Employment services, click here.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources, which are available at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900 or by contacting your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
