By Rob Gilmore & Alexis Preskar

The U.S. Equal Employment Opportunity Commission (EEOC) once again updated its guidance on allowing employees to return to work in the era of COVID-19. KJK covered the EEOC’s prior guidance here.  The organization came out with updated guidelines relating to family issues, harassment claims and responding to requests for accommodations. [UPDATE 6/19/2020: The EEOC advised that employers may not require antibody testing before allowing employees to come back to work.]

ADA Protections for Family Members

The EEOC clarified that employees who live with someone who is at a higher risk for contracting the virus are not protected under the ADA, so employers are not required to make accommodations for them. However, the EEOC advised that businesses may be more flexible in handling these employees’ requests if they wish.

Harassment & Discrimination

Employers still have a duty to mitigate harassment, even if through remote means. The department keyed in on three areas for employers to pay particular attention to:

    1. Race or National Origin. Specifically, employers should be alert to harassment or discrimination against Asian employees, including remarks about the origins of the coronavirus.
    2. Gender. Employers must make sure not to give unequal treatment to one gender over another with respect to childcare as employees head back to work while many daycares remain closed or at limited capacity. For instance, employers should not assume females will take on more caretaking responsibilities and so allow only females to continue working remotely. Gender discrimination also extends to pregnancy, and while employers cannot bar pregnant employees from the workplace, those employees may seek accommodations such as telework.
    3. Age. Similarly, although the virus seems to have a greater impact on those over the age of 65, employers should not prohibit workers from entering the workplace simply because of their age under the ADEA, although workers may request special accommodations due to their age under the ADA.

Handling Employee Requests for Accommodations

Employers may inform employees in advance of reopening who to direct their accommodation requests to, but the EEOC cautions that employers make sure the person receiving the requests is up to date on employment laws and regulations so that requests are handled appropriately. One issue businesses run into as they reopen is employees seeking alternative methods for screening due to a medical or religious reasons. Employers should treat these requests similarly to any other request for accommodation and may request back-up documentation if necessary.

We will continue to monitor the EEOC’s guidelines and other rules that impact employers. If you have questions on how to handle the transition back to onsite work, please contact Rob Gilmore (rsg@kjk.com, 216.736.7240), Alexis Preskar (avp@kjk.com, 614.427.5748) or any of KJK’s Labor & Employment professionals.

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