Don't Bar Older Workers From The Office, EEOC Warns

By Vin Gurrieri
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Law360 (June 11, 2020, 12:55 PM EDT) -- Employers won't be able to "involuntarily" exclude workers over 65 from the workplace even though they are in an age group that public health officials say is at an increased risk of severe COVID-19 illness, the EEOC said in new guidance Thursday that tackled numerous pandemic-related topics.

Workers return to a Fiat Chrysler plant in Michigan on May 18. The EEOC on Thursday warned companies against age discrimination as workplaces reopen but said employers are still "free to provide flexibility" to workers who are over 65. (AP Photo/Carlos Osorio)

The guidance about reintegrating older workers was part of a technical assistance document on the EEOC's website that the agency has updated periodically over the past few months and answers various questions surrounding employers' response to the novel coronavirus pandemic.

Even if an employer "acted for benevolent reasons such as protecting the employee" from becoming severely sick, the EEOC said in Thursday's guidance that the Age Discrimination in Employment Act bars businesses from excluding anyone from the workplace solely because of their age if they want to come back to the job site.

But the anti-discrimination watchdog said that employers are still "free to provide flexibility" to employees in the over-65 age pool, noting 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."

Besides its stance on older workers, the EEOC's guidance also addressed other tricky scenarios facing employers as public health officials increasingly relax virus-related lock downs and let employers reopen their doors.

For example, businesses can't "involuntarily" bar pregnant employees from coming back to work and they may be required to afford those women reasonable accommodations under the Americans with Disabilities Act or the Pregnancy Discrimination Act, according to the EEOC's guidance.

The commission also cautioned employers to treat reports of harassment via email by an employee who is teleworking because of the pandemic the same as they would treat the alleged misconduct if it occurred onsite.

"Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration," the EEOC said.

On top of general forms of harassment, the commission also took pains to mention specifically harassment that may be aimed at people of Chinese or Asian heritage about the origins of the virus, saying managers "should be alert to demeaning, derogatory, or hostile remarks" against them either from their coworkers or other visitors to worksites like contractors or customers.

"Employers may choose to send a reminder to the entire workforce noting Title VII's prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management," the EEOC said in its guidance. "Employers may remind employees that harassment can result in disciplinary action up to and including termination."

Another area the EEOC chose to address in Thursday's guidance was the question of whether an employee can ask for a reasonable accommodation under the ADA so they can avoid potentially exposing a family member to COVID-19 who has a medical condition that places them at high risk of becoming severely sick if they're infected.

In that situation, workers are not entitled to such an accommodation, the EEOC said.

The commission used an example to highlight its position: A worker who doesn't have a disability can't ask that they be allowed to telework during the pandemic as an accommodation in order to safeguard the health of an at-risk family member who does have a disability.

"Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment," the EEOC said in its guidance. "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."

While the agency said that employers are "of course" free to provide workers with any arrangement they want even if they're not legally required to do so, employers should still be wary about treating employees in EEO protected classes differently.

--Editing by Alyssa Miller.

Update: This story has been updated with more information about the guidance.

For a reprint of this article, please contact reprints@law360.com.

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