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COVID-19: When is Being Helpful Actually Discrimination?

Businesses are starting to bring employees back to work. However, COVID-19 is still a reality and concern that employers are grappling with. We are continuing to learn about the effects of COVID-19 on the body and who is most vulnerable, and employers are trying to do their best to limit the spread of the disease in the workplace. Employers may think they are helpful by requiring older and pregnant employees to stay away from the workplace, when really what they are doing may be discriminatory.

The Equal Employment Opportunity Commission has said that employers cannot discriminate against employees based on age, disability, or pregnancy. “The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.” This also applies to employees’ terms and conditions of employment, like wages, job position, and the opportunity to work. However, an employer may allow them to postpone their start date or work from home if the employee so chooses.

Recently, the EEOC defined when individuals, who are at higher risk for severe illness from COVID-19, may have adverse action taken against them. Only after following a multistep analysis of an employee’s situation that shows the employee’s disability poses a “direct threat” to the person’s health that cannot be eliminated or reduced by reasonable accommodation, can the employer bar the person from the workplace or take other adverse action. Although this seems to be an exception to the general protections under the ADA, it is a very high standard that should be reviewed by legal counsel before employers rely on it to exclude an individual or otherwise diminish an individual’s terms and conditions of employment.

Employers should keep in mind that if an employee requests an accommodation based on a disability, the employer must engage in the interactive process to determine whether a reasonable accommodation can be made.

 These are challenging times and it seems like something new is happening every day. Make sure you are upholding employee rights, even while we try to keep each other safe.

For more information on evolving compliance regulations in the wake of the COVID-19 pandemic, or for additional workplace guidance, visit our OneDigital Coronavirus Advisory Hub, or reach out to your local OneDigital advisory team.