By Vicki Crochet - Partner, Employment, Labor and Benefits Practice Group Leader,
Executive Committee Vice-Chair | firstname.lastname@example.org
and Tom Peak - Partner, Taylor Porter Personnel Committee Chair | email@example.com
On June 11, 2020, the Equal Employment Opportunity Commission once again updated its guidance related to the impact of COVID-19 on the ADA, the Rehabilitation Act and other Equal Employment Opportunity laws. This is a summary of this recent guidance.
The complete guidance can be accessed at: http://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
Analyzing Accommodation before return to the Workplace
In advance of a partial or complete return to the workplace, employers are permitted to make information available to all employees about who to contact if they wish to request an accommodation in order to return. If an accommodation request is made in advance of a return to work, the employer may begin the interactive process in order to assess the accommodation request. An employer may, but is not required to, provide information about the CDC listed medical conditions that may place people at higher risk as a result of COVID-19. Regardless of the approach, employers must ensure that whoever receives accommodation requests knows how to handle them consistent with non-discrimination laws with respect to accommodation, religious beliefs, or pregnancy.
Alternate Screening Requests
An employer who is screening employees before a return to the workplace must consider requests for an alternate method of screening if a proposed alternate method of screening is related to a disability. The analysis is the same as any other request for a disability accommodation. Employers must also consider alternate methods as a religious accommodation under Title VII.
Age and COVID-19
The CDC has explained that individuals over the age of 65 are at higher risk as a result of COVID-19. Nonetheless, an employer may not involuntarily exclude an individual from the workplace based on age. Additionally, unlike the ADA, the Age Discrimination and Employment Act (ADEA) does not include a right to reasonable accommodation for older workers strictly based on age. However, workers 65 and older may have medical conditions that may require accommodation under the ADA.
If an employer is providing flexible scheduling or other accommodation as a result of COVID-19 related childcare issues, it must do so without treating employees differently based on sex or other protected characteristics. For example, if the employer allows a flexible schedule to address child care issues, male employees must be afforded the same flexibility as female employees.
An employer may not exclude a pregnant employee from the workplace because of COVID-19. However, since pregnancy-related medical conditions may themselves be disabilities under the ADA (even though pregnancy itself is not a disability) an employer must consider reasonable requests for accommodation due to pregnancy-related conditions. Additionally, Title VII requires that women affected by pregnancy and childbirth related medical conditions be treated the same as others who are similarly situated. This means, for example, that pregnant employees must be granted the same job modifications as non-pregnant employees who are similarly situated in their ability or inability to work.
If you have any further questions, please do not hesitate to contact any member of the Taylor Porter Employment, Labor and Benefits Practice. We will continue to alert you of these updates and post any news and legal developments to our Coronavirus Legal Blog and Resources section of our website.
About Vicki Crochet: Taylor Porter Partner Vicki Crochet, practicing law since 1980, as the Practice Group Leader of the firm’s Employment, Labor and Benefits practice, and as the Vice-Chair of the Taylor Porter Executive Committee. Vicki practices all areas of employment law, advising clients regarding policies and procedures; representing them before governmental agencies including the EEOC, OFCCP, the Louisiana Commission on Human Rights (LCHR), and the Louisiana Civil Service Commission; and handling all aspects of employment litigation. Vicki conducts employee training and is a frequent lecturer on employment law issues. She currently is an associate member of the Greater Baton Rouge Society for Human Resource Management and the Louisiana Society for Human Resource Management.
About Tom Peak: Taylor Porter Partner Tom Peak, practicing law since 1984, practices in labor and employment law, including employee benefits litigation (ERISA and COBRA), employment eligibility and certification (under the immigration laws), workers' compensation (representing management), and OSHA matters. He also represents clients in higher education law. Tom serves as the chair of the Taylor Porter Personnel Committee. Tom has presented seminar topics on labor and employment law, including sexual harassment, discrimination, labor certification, employment eligibility issues, family medical leave, workers compensation and Wage and Hour law. Tom is an adjunct professor at Louisiana State University, teaching a course in Management, Introduction to Labor Relations.
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