EEOC’s Updated COVID-19 Guidance: Employees Not Entitled To Accommodations Because They Live With High-Risk Individuals; Treat Older Workers Equally Despite Risk

In an updated guidance on COVID-19, the ADA, the Rehabilitation Act, and Other EEO Laws, the EEOC has clarified an employer need not accommodate an employee’s request to telework who is not high risk but lives with high risk individuals.  The EEOC has also clarified that companies may not mandate exclude older workers and pregnant employees from the workplace even though public health authorities advise they are a higher risk group for severe cases of COVID-19.

In the updated guidance, FAQ D.13 asks: Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?  The EEOC answers no, explaining that the ADA does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.  As an example, the EEOC specifically writes an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.   While an employer is free to provide that option, it is not ADA-mandated.

As to age concerns, the CDC has explained that individuals age 65 and over are in a higher risk group for severe cases of COVID-19 if they contract the virus and have encouraged employers to offer maximum flexibility to this group.  FAQ H.1 asks whether employees age 65 and over have protections under the federal employment discrimination laws.  In answering yes, the EEOC confirms that the Age Discrimination in Employment Act (ADEA) would prohibit an employer from involuntarily excluding an individual from the workplace because the employee is age 65 or older, even if the employer is acting for benevolent reasons such as protecting the employee from COVID-19.

There is no right to a reasonable reasonable accommodation for older workers due to age under the ADEA.  Employers may be flexible with workers age 65 and older (and that will be permissible even if it means workers age 40-64 are treated less favorably based on age in comparison).   Lastly, if an employee age 65 or older has a medical condition that brings them within the ADA, they may then be entitled to an accommodation based on their disability, as opposed to their age.

There are other topics for which updated guidance has been issued including responding to pandemic-related harassment (FAQ E.3) communicating with employees about flexible work arrangements in advance of returning to work (FAQ G.6), not excluding pregnant employees from the workplace involuntarily (FAQ J.1), and pregnancy accommodations that may exist (FAQ J.2).

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