EEOC Offers New Pandemic Guidance on Disability and Age Discrimination

The Equal Employment Opportunity Commission recently released new guidance addressing some common questions involving the intersection between certain discrimination laws and the COVID-19 crisis. Since the EEOC has been fairly quiet lately compared to other agencies, like the DOL, OSHA, or the CDC, this new guidance is a reminder of the extent to which the current pandemic has affected virtually every aspect of employers’ day-to-day operations.

Available medical evidence suggests that contracting COVID-19 presents a greater health risk for individuals with preexisting conditions such as diabetes, asthma, or obesity. Because of this, it is likely that some employees who did not previously require workplace accommodations for these potential disabilities will now begin making these requests. The EEOC’s guidance reminds employers that the Americans with Disabilities Act requires them to engage in an interactive process with covered employees and to offer reasonable accommodations for the workplace limitations they may have. The EEOC encourages employers to kick-start this process by letting employees know whom they should contact if any such accommodation is needed.

COVID-19 also poses a heightened risk to individuals age 65 or above. Although being older is not a “disability” that legally requires accommodating, these employees’ increased vulnerability nonetheless presents a thorny dilemma for employers attempting to prioritize these employees’ safety while also remaining compliant with the Age Discrimination in Employment Act. In its guidance, the EEOC reminds employers that it would violate the ADEA to exclude these older, higher-risk employees from the workplace against their will, even if done for benevolent reasons. However, the EEOC encourages (but does not require) employers to provide additional flexibility to these employees, perhaps in the form of work-from-home arrangements or modified duties, even if this treatment is more favorable than what their younger co-workers are offered.

As more and more businesses return to “normal” operations, we anticipate that health- and age-related requests will become increasingly common. Make sure you have a plan in place, and remember that our professionals at K|W|W are here to help with your legal and workforce management questions in any way we can. Your workforce is our priority.

The K|W|W Team