Q. As an employer, I am concerned about the health and safety of my employees who may be particularly susceptible to COVID-19. As I reopen my business, can I delay recalling those employees who are most at risk, such as older employees and pregnant workers?
A. As states begin to reopen their economies following months of shutdowns related to the COVID-19 pandemic, many employers are wrestling with challenging questions about how to bring their employees back in a safe and responsible manner.
New guidance from the Equal Employment Opportunity Commission (“EEOC”) provides some insight about what employers can and cannot do in connection with bringing certain vulnerable employees back to the workplace.
It is well-known that people over the age of 65 are at greater risk of the worst effects of COVID-19. A good-intentioned employer might think it would be reasonable to bring younger employees back to the workplace first and to wait before bringing older employees back. Such an approach would violate the Age Discrimination Employment Act (“ADEA”), according to the EEOC. Employers may offer flexibility to workers over the age of 65, even if other protected employees between the ages of 40 – 64 are not offered the same latitude. The key is that the accommodation for the older workers must be voluntary.
Pregnant women are another group who may be at higher risk. However, employers may not involuntarily exclude pregnant workers from the workplace as part of a post-pandemic reopening policy. Even when motivated by “benevolent concern,” an employer’s policy that prohibits pregnant employees from coming back to the workplace would constitute illegal sex discrimination under Title VII. However, under the Americans with Disabilities Act (“ADA”), employers must consider a reasonable accommodation requested because of an employee’s pregnancy-related medical condition. Also, under the Pregnancy Discrimination Act, employers must treat such requests for accommodation in the same manner as requests from workers who are similar in their ability or inability to work. This means that employers may be required to provide pregnant workers with modified schedules, telework, leave, or other accommodations, if requested by the employee.
The EEOC suggests reaching out to all furloughed employees to let them know that the employer is willing to consider requests for accommodation on a case-by-case basis. This practice gives employees the opportunity to make their own choices about returning to work, and to self-identify as someone needing an accommodation.
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