Because the nation continues to maneuver towards reopening, the EEOC and the Occupational Security and Well being Administration (“OSHA”) issued extra steering for employers to think about as they plan staff’ return to the office. These updates complement earlier steering issued by each companies, which we focus on in our earlier posts.
On June 11, 2020, the EEOC issued extra, revised technical help to employers, addressing essential concerns for employers which have staff returning to the office who’re at increased danger for extra extreme sickness as a consequence of COVID-19. Particularly, the steering explains that the Age Discrimination in Employment Act (ADEA) would prohibit a coated employer from “involuntarily excluding a person from the office based mostly on [their] being 65 or older, even when the employer acted for benevolent causes akin to defending the worker as a consequence of increased danger of extreme sickness from COVID-19.” The EEOC goes on to clarify that in contrast to the People with Disabilities Act (ADA), the ADEA doesn’t embody a proper to cheap lodging for older staff as a consequence of age. However, employers are free to supply flexibility to older employees because the ADEA doesn’t prohibit this, even when it leads to staff youthful than 65 being handled much less favorably based mostly on age.
Upfront of getting some or all staff return to the office, the EEOC explains that employers could make data obtainable upfront to all staff about who to contact (if they want) to request lodging for a incapacity that they might want upon return to the office, even when no date has been introduced for his or her return. In accordance with the steering, an employer might select to incorporate in such a discover all of the CDC-listed medical situations which will place individuals at increased danger of great sickness in the event that they contract COVID-19, present directions about who to contact, and clarify that the employer is prepared to think about on a case-by-case foundation any requests from staff who’ve these or different medical situations. Alternatively, an employer might ship a basic discover to all staff who’re designated for returning to the office, noting that the employer is prepared to think about requests for lodging or flexibilities on an individualized foundation. The employer ought to specify if the contacts differ relying on the explanation for the request – for instance, if the workplace or particular person to contact is completely different for workers with disabilities or pregnant employees than for workers whose request is predicated on age or child-care obligations.
The EEOC’s up to date steering additionally addresses the next topics:
Lodging to Keep away from Exposing Household Members. The steering confirms that staff are not entitled to an lodging below the ADA so as to keep away from exposing a member of the family who’s at the next danger of extreme sickness from COVID-19 as a consequence of an underlying medical situation. Whereas the ADA prohibits discrimination based mostly on affiliation with a person with a incapacity, this safety is restricted to disparate remedy or harassment and doesn’t require the employer to accommodate an worker with out a incapacity based mostly on the disability-related wants of a member of the family or different particular person with whom they’re related. Whereas employers are free to supply lodging if it chooses to take action, the steering cautions in opposition to participating in disparate remedy because of providing extra flexibilities.
Lodging Primarily based on Being pregnant. The EEOC makes clear that employers can’t exclude an worker from the office involuntarily as a consequence of being pregnant, even when motivated by benevolent concern, or in any other case single out staff on the idea being pregnant for antagonistic employment actions, together with involuntary go away, layoff or furlough. In fact, pregnant staff could also be entitled to sure job modifications, together with telework, adjustments to work schedules or assignments, and go away to the extent offered for different staff who’re related of their capability or lack of ability to work. The steering reminds employers to think about such requests below the standard ADA guidelines.
Requests for Various Methodology of Screening. If an worker coming into the worksite requests another technique of screening as a consequence of a medical situation or faith, an employer ought to deal with this as a request for cheap lodging and proceed as it might for every other request for lodging below the ADA or Title VII, as relevant. If the requested change is simple to supply and cheap, the EEOC suggests the employer voluntarily select to make it obtainable to anybody who asks, with out going by way of an interactive course of. Alternatively, if the incapacity isn’t apparent or already identified, an employer might ask the worker for data to determine that the situation is a incapacity and what particular limitations require an lodging. If essential, an employer additionally might request medical documentation to assist the worker’s request, after which decide if that lodging or another efficient lodging could be offered, absent undue hardship.
Pandemic-Associated Harassment. The EEOC has said that managers needs to be alert to “demeaning, derogatory, or hostile remarks directed to staff who’re or are perceived to be of Chinese language or different Asian nationwide origin, together with concerning the coronavirus or its origins.” Additional, all employers coated by Title VII ought to be certain that administration understands upfront easy methods to acknowledge such harassment. Employers might select to ship a reminder to the complete workforce noting Title VII’s prohibitions on harassment, inviting anybody who experiences or observes harassment to report it to administration, and reminding staff that harassment can lead to disciplinary motion, as much as and together with termination
The steering additionally makes clear that harassment might happen utilizing digital communication instruments (e.g., emails, calls, or platforms or video or chat communication and collaboration) – no matter whether or not staff are within the office, teleworking or on go away – and likewise in particular person between staff on the worksite. If an employer learns that an worker who’s teleworking is participating in harassment, the employer ought to take the identical actions it might take if the worker was within the office.
If an employer supplies telework, modified schedules or different advantages to staff with youngsters as a consequence of college closures or distance studying, the employer should guarantee they aren’t treating staff in a different way based mostly on intercourse or different protected traits (e.g., assuming feminine staff, and never male staff, have caregiving obligations).
On June 10, 2020, OSHA launched new steering within the type of an FAQ concerning the usage of face masks within the office. Importantly, the steering makes clear that OSHA doesn’t think about material or makeshift coverings to be regulated private protecting gear (PPE), and likewise outlines the variations between material face coverings, surgical masks, and respirators, noting that material face coverings “could also be commercially produced or improvised (i.e., selfmade) clothes, scarves, bandanas, or objects constructed from t-shirts or different materials.”
The FAQs remind employers to not use surgical masks or material face coverings when respirators are essential and if respirators are required, a correct respiratory safety program needs to be in place. As well as, the FAQs observe the necessity for social distancing measures, even when employees are carrying material face coverings, and recommends following the CDC’s steering on washing face coverings.
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