Thursday, July 30, 2020

Content Courtesy of WECA Industry Partner Cook Brown, LLP

By: Terry A. Wills and Hanh B. Phan

Businesses are beginning to regain their footing after closure due to the COVID-19 pandemic. As businesses work to reopen, employers must inevitably weigh their growing economic losses and public health concerns with shielding themselves from discrimination lawsuits.

Planning for Reopening

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated its technical assistance publication to address important questions arising under discrimination laws related to the COVID-19 pandemic. In the latest update, the EEOC clarifies information on coronavirus testing, planning for reopening, accommodations and flexibility, and discrimination. For example, the Americans with Disabilities Act (“ADA”) strictly requires that any mandatory medical exams of employees be “job related and consistent with business necessity.” The EEOC has clarified that this standard permits employers to require COVID-19 testing, but does not allow them to require antibody testing before allowing employees to re-enter the workplace as it does not meet the “job related” criteria. (See Q&A A.7.) Employers may also screen applicants for COVID-19 and may postpone a new employee’s start date or withdraw an offer altogether if the individual has COVID-19 or is displaying symptoms of the virus.

Public health mandates serve to maintain the integrity of the health care system and protect especially vulnerable populations, such as individuals age 65 and over or pregnant. Accordingly, employers may want to take extra steps to protect these employees. To this end, the EEOC affirmed that employers are free to provide maximum flexibility to older employees even if younger employees are being treated less favorably in comparison. Job modifications, telework, or changes to work schedules and assignments are all acceptable options. In taking steps to protect pregnant employees, employers have the option to provide flexibility beyond what the law requires, notwithstanding disparate treatment on a protected EEO basis.

However, the EEOC warned that employers cannot bar elderly or pregnant workers from returning to the job site, even if the employer is trying to protect them from severe sickness. According to the Age Discrimination in Employment Act (“ADEA”), employers may not exclude anyone from the workplace because of age. Similarly, Title VII of the Civil Rights Act bars discrimination based on pregnancy. Therefore, companies cannot single out workers on the basis of either age or pregnancy and require them to stay home even if the reason for doing so is to protect the employee from being exposed because they are at a higher risk of contracting COVID-19. (See Q&A H.1.) Read the rest of the article here.