Sunday, May 16, 2021

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While employers have a duty to provide a safe working environment to all employees, during the COVID-19 pandemic, employers may be particularly concerned about employees who are at a higher risk of serious illness from COVID-19. However, employers remain limited in their ability to protect vulnerable employees against their will. For example, the EEOC's guidance makes clear that employers may not require that employees who are over the age of 65 stay out of the workplace simply because the CDC has identified this age group as being at higher risk. Doing so would violate the ADEA. Similarly, an employer may not make furlough or layoff decisions based on which employees fall into a high-risk category. Specifically, the guidance explains that the ADEA would prohibit a covered employer 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." However, the EEOC goes on to explain that unlike the ADA, the ADEA does not include a right to reasonable accommodation for older employees due to age. Nevertheless, employers are free to provide flexibility to older workers as the ADEA does not prohibit this, even if it results in employees younger than 65 being treated less favorably based on age.

An employer also may not ask employees who are asymptomatic whether they have a medical condition that would place them in a high-risk category unless the inquiry is made for a permissible purpose under the ADA. For example, when an employee in a high-risk category that is considered a disability under the ADA requests an accommodation (such astelework) to minimize the risk of contracting COVID-19, the employer has an obligation to provide a reasonable accommodation so long as doing so would not cause an undue hardship on the employer. In addition to the high risk medical conditions identified by medical researchers early in the COVI-19 crisis, employers should be aware that crisis also resulted in and will continue to result in a mental health crisis. Psychological distress triggered by the coronavirus pandemic is likely to engage employers to address a fluid area of the law whether leave is a reasonable accommodation for heightened psychological distress, such as anxiety, sleeplessness, or depression.

The COVID-19 virus had a disparate impact on people of color, especially African-Americans and Latinx people. Similarly, the virus had a disparate impact based on age. These facts may lead to claims of disability plus race discrimination, disability plus age discrimination, or even the intersectionality of disability, race, and age based on the sex-plus theory of discrimination. . . classification restrict employment opportunities to specific classes of one sex, generally women. The employer initiates a policy or practice on the basis of sex plus another characteristic. For example, some employers refused to hire women with pre-school-age children, married or pregnant women, or women over a certain age. In this situation, in considering reasonable accommodations, if employers distinguish based on the disability and the plus factor of either race or age or both, this theory might well be utilized.

The EEOC advised that given COVID crisis, employers and employees should both try to be as flexible and creative as possible when engaging in the interactive process. Employers should, however, consider how accommodations granted in response to COVID-19 may affect their accommodation obligations after the pandemic ends. For example, while the EEOC states that an employer allowing telework in response to COVID-19 is not automatically required to grant telework to every disabled employee once the pandemic ends, the agency also states that temporary telework granted in response to COVID-19 may be relevant to considering renewed requests made later on. COVID-19 telework could serve as a trial period for determining whether the employee was able to perform the essential functions of his or her job while working remotely.

In advance of having some or all employees return to the workplace, the EEOC explains that employers can affirmatively make information available in advance to all employees about who to contact (if they wish) to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. According to the June 17, 2020 guidance, an employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. Alternatively, an employer may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request - for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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