The United States currently is experiencing an unprecedented public health emergency due to the COVID-19 virus. The economic fallout of this crisis has been sudden and brutal on US employers, with vast numbers of businesses ordered to close and nearly 1 million new unemployment claims filed in the past two weeks alone. In response, Congress has passed several new laws to take emergency action to address the impact on employers and employees. These laws and the speed at which they were put in place has left many overwhelmed and with many questions about what obligations they impose and how they will operate, if they can at all, through this crisis.
Although there is a certain feeling that in unprecedented times like this, employers should have more flexibility to take what could be potentially business-saving measures, no matter how drastic, it is important for employers to remember that, even during these trying times, the laws enforced by the US Equal Employment Opportunity Commission (EEOC)—including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Genetic Information Nondiscrimination Act (GINA)—all continue to apply. Indeed, the EEOC has made clear that employers’ obligations under these laws do not interfere with or prevent employers from following the guidelines and suggestions made by the Centers for Disease Control (CDC) or from complying with state and local public health authorities concerning steps employers should take regarding COVID-19.
On March 27, 2020, the EEOC released a recorded COVID-19 “Ask the EEOC” Webinar in which it addressed some of the most frequently submitted questions from employers that have not already been answered in the agency’s released publications (What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 and Pandemic Preparedness in the Workplace and the Americans with Disabilities Act). In the webinar, the EEOC answers questions under the ADA, including some regarding disability-related inquiries and medical examinations, confidentiality of medical information, and employers’ obligation to provide reasonable accommodations. Further, the EEOC addresses COVID-19 issues relating to other statutes enforced by the agency, such as laws against age, pregnancy, and national origin discrimination.
The EEOC has emphasized that employers are not exempt from their antidiscrimination obligations during this pandemic, and employers must be particularly careful to avoid age, national origin, and disability discrimination when implementing business response strategies. For example, an employer cannot single out employees based on their national origin due to concerns about possible transmission of COVID-19 and must be careful not to tolerate a hostile work environment based on an employee’s national origin because others link it to the transmission of COVID-19. In addition, an employer cannot exclude employees from the workplace or force employees to telework simply because they are 65 years old or older and therefore fall within the age group that the CDC has identified as being at a higher risk of severe illness if they contract COVID-19. They must also be mindful of their obligations not to discriminate when selecting employees for layoff or furlough.
Further, employers must continue to adhere to their obligations under the ADA. The CDC has identified a number of medical conditions, including chronic lung disease and serious heart conditions, as potentially putting individuals at a higher risk of severe illness from COVID-19. Therefore, employees who are particularly vulnerable to COVID-19 due to a pre-existing health condition are entitled to request a reasonable accommodation under the ADA. Employers need to remember that their obligations to engage in the interactive accommodation process do not disappear during this crisis. This is particularly true for employers of health care providers who are at the forefront of the COVID-19 outbreak and who themselves may have health conditions that make them more susceptible to infection, further exacerbated by the shortage of personal protective equipment that many hospitals are facing. Employers should respond to accommodation requests promptly and may verify that the employee does in fact have a disability as well as that the accommodation is needed because the disability puts the employee at a higher risk.
With that said, the ADA does not require employers to provide accommodations that, under the circumstances, would result in an “undue hardship” on the employer, nor does it require employers to create a new job for employees who cannot perform the essential functions of the position even with a reasonable accommodation. Further, an employee only has a right to a reasonable accommodation regarding his or her own disability. Therefore, if an employee says that he or she lives in the same household as someone who, due to a disability, is at a greater risk of severe illness from COVID-19, the employer is not obligated to provide the employee an accommodation under that circumstance. However, it is also important that employers respond consistently to similar requests for accommodation in order to ensure that they are being fair and nondiscriminatory in accommodation practices.
This is a rapidly evolving situation, and the EEOC has reminded employers that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety and consult with an attorney if they have any questions about their obligations during these uncertain times.