As businesses and offices reopen during the continuing COVID-19 pandemic, employers must ensure they do not violate employment discrimination laws and regulations as they develop plans and procedures to abide by social distancing and safety guidelines required by federal, state and local law.

Recent technical assistance questions and answers from the U.S. Equal Employment Opportunity Commission (EEOC) state that equal employment opportunity laws do not interfere with or prevent employers from following the guidance put out by the Centers for Disease Control and Prevention (CDC) or state and local health departments. As of June 17, 2020, the CDC guidance defines workers at a high risk for severe illness from COVID-19 to be individuals over the age of 65 and those with underlying medical conditions. These conditions include, but are not limited to, chronic lung disease, moderate to severe asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease that requires dialysis.  The CDC recommends that employers protect those employees at a higher risk by encouraging them to telework or offering them other duties or hours to minimize their contact with others.

However, the EEOC also cautions that employers must not engage in discrimination in their implementation of social distancing requirements, such as age discrimination. The Age Discrimination in Employment Act (ADEA) protects applicants and employees, aged 40 or older, from age-based employment discrimination by private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government. The EEOC notes that excluding an individual from the workplace based on his or her age being 65 or older violates the ADEA, despite the employer’s intent to protect said employee from potentially contracting COVID-19 and abiding by CDC recommendations.

Although employers cannot mandate any special procedures for employees based on their age, employers can offer a choice between alternative options for higher risk employees. The EEOC states that the ADEA does not prohibit employers from providing flexibility to employees age 65 or older, even if it results in employees “ages 40-64 being treated less favorably based on age in comparison.” Furthermore, an employer can require any employee experiencing symptoms of COVID-19 to leave the workplace and not return while experiencing those symptoms or until he or she has clearance from a doctor.

Some employees age 65 or older may have medical conditions, which would qualify them for protections under the Americans with Disabilities Act (ADA). The ADA applies to private employers with 15 or more employees, state and local governments, employment agencies, labor organizations and federal agencies under Section 501 of the Rehabilitation Act. Under the ADA, an employer cannot discriminate against an individual with (i) a disability or (ii) a relationship with a person who is disabled (such as a spouse with a disability).  The ADA definition of disability includes (i) a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning); (ii) a history of a disability (such as cancer that is in remission); or (iii) a belief that the individual has a physical or mental impairment that is not transitory and minor. An employee with a disability can request a reasonable accommodation from his or her employer. The employer must provide the accommodation so long as it does not cause undue hardship (i.e., significant business difficulty or expense) to the employer. Those employees caring for a loved one suffering from a serious health condition may have protections under the federal Family Medical Leave Act or state equivalent as well.

The EEOC has updated its Pandemic Preparedness in the Workplace guide to better address the current COVID-19 pandemic, which can be found here. Employers should keep these laws in mind while developing, implementing and modifying their plans and procedures for reopening during the COVID-19 pandemic. For further information or guidance on revising your policies and procedures in accordance with the above, please contact Jessica Baquet or David Paseltiner.