Throughout the pandemic the EEOC has continued to enforce the nations EEO laws but they do not contradict the guidelines that have been given to employers from the CDC or from state or local public health authorities. They have also been providing technical assistance through guidelines published on the EEOC website.

The most recent guidance, published on June 11. 2020 addresses pandemic related harassment against Asian employees. Employers should be aware that such harassment is illegal and they should educate managers on how to address such harassment.

The EEOC reminds employers to discuss accommodations for disabilities through the interactive process. Employees who are at higher risk due to underlying health conditions may request accommodations. You can ask for medical documentation from a health care provider. If an employer chooses to do so, they may send out a notice to employees of all the CDC-listed medical conditions that place people at higher risk of contracting COVID.

If an employee requests an alternative method of COVID screening for entry into the workplace and they claim it is because of a disability, an employer can ask for medical documentation. Please also keep in mind an employee may request an alternative screening method due to a religious belief. You cannot demand that they get a note from their religious leader, rather question the employee about their sincerely held belief and then use common sense.

Employees who are over 65 are at higher risk due to COVID. The ADEA (which prohibits age discrimination) does not include a right to an accommodation but the EEOC says employers are free to provide flexibility to workers age 65 an up even if it results in employees under age 65 being treated less favorably.

The EEOC reminds us that if you are providing telework or flexible schedules for employees with children at home, you cannot make gender based decisions. You should not make assumptions about who should have care taking responsibilities for children.

Finally, the EEOC says the employer cannot exclude employees from the work place because they are pregnant. Employers are not Big Brother; the employee makes the decision to return to work. If the pregnant employees provide a doctor’s note, she is entitled to reasonable accommodations.

If you have any questions about the EEOC’s guidance or EEO laws, please contact the Kitch Labor & Employment team.

Any information included here or through our web site is presented solely for general informational purposes and is not in any way intended as legal advice, is not a substitute for getting actual legal advice from an attorney, and should not be acted upon as legal advice without first seeking qualified professional counsel specific to your needs and situation. Additionally, by providing this general information and the information on our web site, no attorney client relationship is created.

EEOC Updates Technical Assistance June 11, 2020

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