Client Alert: Questions Employers Should Consider Before Reopening – Revisited

Last month, we provided clients with a set of Q&As focused on issues employers could/would be facing as they sought to reopen operations. Two issues in particular, which we have seen raised by clients in the weeks since, are:

1.  An employer may be selecting some people to return to work, BUT not everyone is coming back immediately.  This can give rise to claims of discrimination based on age, pregnancy, and/or disability.  Can an employer decide to utilize one of these criteria in the interests of “protecting” an employee in one of these groups?

No. . . .

2.  An employer starts calling people back to work.  An employee complains that the virus is still out there; and he/she will not leave the house for fear of getting it.  Is a generic fear of getting the virus a sufficient excuse for the employee to refuse to return?

No. . . .

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Yesterday, the U.S. Equal Employment Opportunity Commission issued new guidance on related issues which, presumably, have been coming to their attention over this reopening period – and their views echo the same guiding principles:

3.  Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

No.  Although the Americans with Disabilities Act (ADA) prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.  The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. 

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. 

4.  The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group.  Do employees age 65 and over have protections under the federal employment discrimination laws?

The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her 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.

Unlike the ADA, the Age Discrimination in Employment Act (ADEA) does not include a right to reasonable accommodation for older workers due to age.  However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. 

5.  Is there a right to accommodation based on pregnancy during the pandemic?

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.   

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.

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In a nutshell, generic fears by an employee about exposure to the virus do not shield the employee from an employer’s desire to return to business operations; nor would they justify an employer in proactively/unilaterally trying to prevent an employee from exposure by excluding them from work. At the same time, where an employee asserts that he/she actually has medical circumstances that warrant workplace accommodations, an employer would be prudent to give such requests serious consideration under the analysis that would have applied before the coronavirus came to the forefront.

For over 100 years Brouse McDowell has assisted clients in getting through difficult times and helping them solve problems. We have extensive experience in protecting employees, instilling customer confidence, and leveraging business opportunities. Do not hesitate to reach out to one of our attorneys for assistance.