Recent Equal Employment Opportunity Commission (EEOC) Guidance on COVID-19 Issues

EEOC Calls Out Age-Related Discriminatory Practices

The latest round of updates to its FAQs saw the EEOC specifically identify age discrimination as a cause for concern given the current state of affairs. The agency acknowledged that public health authorities have identified those age 65 and over as being at higher risk for a severe case of COVID-19 if they contract the virus. However, because the Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against those 40 and older, the law prohibits employers from involuntarily excluding an individual from the workplace based on their being 65 or older – “even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”

Further, the EEOC notes that workers age 65 and older also may have medical conditions that would separately bring them under the protection of the ADA. If this is the case, you should keep in mind that these workers may request reasonable accommodation for their disability as opposed to their age, and that you should run through your typical interactive process with them.

Agency Also Confirms Limits of Accommodation Obligations

In other updated portions of the FAQ guidance, the EEOC confirmed that workers are not entitled to an ADA reasonable accommodation simply to avoid exposing a vulnerable family member to a potential case of COVID-19. It confirmed that the federal disability rights statute does not require you to accommodate an employee without a disability based on any disability-related needs of a family member or anyone else.

Other Workplace Discrimination Considerations

The latest round of updates from the EEOC also covered topics that may find their way to your workplace during these unprecedented times. Specifically:

Caregivers/Family Responsibility: You are permitted to provide flexibilities to workers who are juggling work responsibilities and parenting during this time of school closures and distance learning (such as telework, modified schedules, or other benefits), but need to make sure you are not treating employees differently based on sex or other EEO-protected characteristics. “For example,” the EEOC says, “female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.”

Pregnancy: Just as with older workers, you may not involuntarily exclude an employee from the workplace due to pregnancy. “Even if motivated by benevolent concern,” the EEOC says, “an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

A company’s best defense against the potential expense and aggravation related to federal or state law violations is to proactively review and revise as needed all Human Resources policies, handbooks, hiring procedures, compensation, benefits, training programs, communications tools and other functions. The professionals of PHHR are ready to assist your organization with this type of training as well as to maintain compliance with the latest state and federal mandates.

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Paul Hilton is a certified Human Resources Consultant, located in Columbia, SC.
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