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EEOC Issues Updated COVID-19 Employment Guidance

June 12, 2020

By: Rachel D. GebaideMorey Raiskin & Nicole Cuccaro

Yesterday, the EEOC issued additional guidance for employers addressing COVID-19 in the workplace, which can be found here. Notably, the EEOC advised that employers may not involuntarily exclude employees over the age of 65 from the workplace due to coronavirus, even if the employer acted for benevolent reasons. Such exclusion would be prohibited by the Age Discrimination in Employment Act (ADEA).

However, the EEOC noted that employers are free to provide flexibility to workers age 65+, even if it results in workers under 65 years of age being treated less favorably in comparison. Unlike the Americans with Disabilities Act (ADA), the ADEA does not entitle employees age 65+ to a reasonable accommodation based solely on age, although employers should be mindful that such employees may have medical conditions that provide them with protection under the ADA. The EEOC went on to address other COVID-19-related topics, as summarized below. 

First, the EEOC confirmed that employees are not entitled to an accommodation under the ADA in order to avoid exposing a family member who may be at a higher risk of illness from COVID-19 due to underlying medical conditions. While an employer is free to provide flexibility so long as it does not engage in disparate treatment on a protected EEO basis, the ADA does not require employers to accommodate an employee based on the disability-related needs of an employee’s family member.

As to flexible work arrangements, the EEOC confirmed that the ADA and the Rehabilitation Act permit employers to provide notice to all employees that the employer is willing to consider requests for accommodation or flexibility on an individualized basis, whether or not a date has been announced for such employee’s return. This notice may include a list of the higher-risk underlying conditions from the CDC and should include the appropriate employer representative for employees to contact regarding a flexible work arrangement.  

Next, the EEOC confirmed that so long as employers are not treating employees differently based on an EEO-protected characteristic, employers may provide flexibility to employees who act as caregivers to school-aged children. As an example, the EEOC cautioned against treating female caregivers more favorably in this regard as compared to male caregiver employees, in violation of Title VII. 

Additionally, the EEOC advised that pregnant employees may be entitled to an accommodation based on their pregnancy during the coronavirus pandemic. Under the ADA, while pregnancy is not a disability on its own, certain pregnancy-related medical conditions may entitle pregnant women to a reasonable accommodation. Under Title VII, as amended by the Pregnancy Discrimination Act, pregnant women must be treated the same as others “who are similar in their ability or inability to work.” Like employees that are 65 and older, the EEOC confirmed that employers may not involuntarily exclude pregnant employees from the workplace, even if acting with good intentions. 

Finally, the EEOC noted that managers should be alert to “demeaning, derogatory or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin.” This form of harassment may originate in a variety of ways, including in the physical workplace, via electronic means, or through the employer’s contractors and customers. Employers covered by Title VII should ensure that management is trained to recognize such harassment.

Please contact Rachel D. GebaideMorey RaiskinNicole Cuccaro or the Lowndes attorney with whom you regularly interact with any questions you may have while navigating employment matters during the COVID-19 pandemic. 

For up-to-date news please follow our Coronavirus (COVID-19) Resource Center.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


Nicole

Nicole Cuccaro focuses her practice on real estate transactions, real estate development and commercial leasing.


Nicole's practice includes the acquisition, disposition, leasing and financing of commercial real estate in the retail and hospitality industries. Before she began her career in real estate law, her practice was focused on commercial and corporate litigation where she regularly represented lenders and business entities.

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