EEOC: Don't exclude older or pregnant workers from return-to-work plans

Dive Brief:

Employers should not prevent pregnant or older workers from returning to work on the basis of those characteristics, the U.S. Equal Employment Opportunity Commission (EEOC) said in a June 11 update to its COVID-19 guidance.
"Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough," the agency said. Likewise, "[t]he ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19." Individuals age 65 and older are generally understood to face a higher risk with COVID-19, although nondiscrimination protections begin at age 40.
The commission's updates also addressed alternative screening accommodations, best practices for inviting workers to request flexibility and guidance on accommodation requests from pregnant workers or those living with an individual at high-risk for severe illness.

Dive Insight:

The Commission has updated its guidance several times since the novel coronavirus pandemic began. In March, it said employers were free to measure employees' body temperature, though such actions constitute a medical exam.

The following month, approved employer questions about potential COVID-19 symptoms and, given that an infected individual can pose a direct threat to the health of others, on-site tests as a condition of entering the workplace as long as the test is "job related and consistent with business necessity."

Still, EEOC has reminded employers that federal equal employment opportunity laws, including the Americans with Disabilities Act (ADA), are still in force as the nation grapples with the pandemic. Similar to its most recent update, the agency said in May that employers may not exclude employees with disabilities from the workplace or take any other adverse actions against an individual with a disability "solely because" of an impairment, unless the disability "'poses a direct threat'" to health or safety that a reasonable accommodation could not reduce or eliminate.