Updated Federal Guidance Focuses on Non-Discrimination Laws and Re-Opening Workplaces

By | Published On: June 15, 2020

On June 11, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its publication titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The publication, a series of technical assistance questions and answers, includes guidance for employers planning to re-open their workplaces. In this most recent update, the EEOC provides new guidance on three topics: (1) flexibility in work arrangements for employees covered under federal non-discrimination laws, such as the Americans with Disabilities Act (ADA) and the Rehabilitation Act; (2) screening alternatives for employees covered under such laws; and (3) responding to pandemic-related harassment.

Certain employees covered under the ADA and/ or Rehabilitation Act may require flexibilities in their work arrangements due to the ongoing COVID-19 pandemic. The updated publication provides details as to how employers may make information related to ADA and/ or Rehabilitation Act accommodations available to all employees prior to re-opening as a way for employers to invite employees to request flexibility in their work arrangements. The updated publication clarifies that if employers provide additional flexibilities to employees based on child-care responsibilities, all employees must have equal access to the flexibilities (e.g., female employees cannot be given more favorable treatment than male employees).  It also clarifies that employers are not required to provide an employee without a disability with an accommodation based on the disability-related needs of their family member.

Federal non-discrimination laws such as the ADA, the Rehabilitation Act, and Title VII of the Civil Rights Act of 1964 (Title VII) also cover certain employees who require alternative methods of screening due to a medical condition or need for a religious accommodation. The updated publication clarifies that employers may ask employees who submit requests for accommodation due to a medical condition for information, such as medical documentation, to establish that their medical condition is a covered disability. In the event of a request for an alternative method of screening due to a religious reason, employers should determine if an accommodation is available under Title VII.

The EEOC also encourages employers covered by Title VII to ensure that management is adequately trained on its legal obligations relating to pandemic-related harassment, particularly towards employees of Chinese or other Asian national origin. The updated publication encourages employers to train managers to identify and resolve potential issues before they rise to the level of unlawful discrimination and to remind all employees that harassment is prohibited under Title VII and can result in disciplinary actions or termination.

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Ms. Pledgie is a member of the New York and Massachusetts Bars and is not licensed in Washington, DC. Her practice is limited to federal health care matters.