COVID-19 Does Not Suspend EEOC Obligations

Employers are acutely aware of the avalanche of federal, state and local legislation that has been enacted in response to the COVID‑19 pandemic. Many law firms and other commentators have published alerts addressing compliance issues arising under the Occupational Safety and Health Act ("OSHA"), the National Labor Relations Act ("NLRA") and the Worker Adjustment and Retraining Notification Act ("WARN") as employers scramble to update their policies in compliance with the new Families First Coronavirus Relief Act ("FFCRA") and CARES Act. In trying to keep with up with the ever changing responsibilities under new legislation, it is imperative that employers not overlook traditional EEO and anti-discrimination legal obligations.

In addition to state and local laws or ordinances, employers must be especially careful in this environment to remember EEO‑based obligations imposed by Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act. This article reminds employers of obligations under these federal laws with a focus on particular issues arising in the pandemic.

Title VII — Title VII is the primary federal legislation related to anti-discrimination in employment. Title VII prohibits discrimination based upon numerous protected classes including race, color, religion, sex or national origin. An unfortunate reality in this COVID-19 era is that many employers are considering compensation reductions, temporary furloughs, various forms of layoff and even permanent employment termination/reductions in force. Other employers are faced with reducing their onsite staff to some sort of skeleton crew necessary to maintain business operations. In deciding which employees to include in any staff or compensation reduction, employers should ensure their decisions can withstand scrutiny from a Title VII perspective. For example, if an employer decides to reduce staff and has a workforce demographic comprised of 20% diverse employees, that employer should make sure the diverse employees are not disproportionately impacted. This is just one example. Employers deciding which employees to include in any sort of reduction should be careful that such decisions are not made based upon Title VII factors, but are instead justified by other business concerns such as seniority, performance or ability to cross-train to additional duties.

Additionally, Title VII recognizes the concept of "disparate impact." This basically means that if the employer takes some action or institutes a policy that is facially neutral, it can still be illegal under Title VII if the action has a "disparate impact" on a protected class. Employers are encouraged to prepare a spreadsheet of affected employees, including Title VII factors, to consider whether a disproportionate impact is present.

ADEA — Most guidance related to Title VII also applies to age discrimination. Under the federal ADEA, employees 40 years or older are considered to be in a protected class. An additional issue arises with age discrimination and employee layoffs. If an employer engages in some sort of program to permanently reduce its workforce in COVID‑19 situations, they must comply not only with ADEA, but also with the related Older Workers Benefit Protection Act ("OWBPA"). A primary additional obligation is that any waiver or release that is proposed to employees being terminated (often utilized as part of providing the employee with severance money in exchange for a release of legal claims), must comply with more stringent standards. Those include a heightened obligation to make sure the employee’s waiver is "knowing and voluntary." If a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or a class of employees, the employer has additional obligations to provide information to the affected employees. That information basically includes any class, unit or group of individuals covered by the program, any eligibility factors and any time limits. Additionally, the written notice must include the job titles and ages of all individuals eligible or selected for the program, as well as the ages of all individuals in the same job classification or unit who are not eligible or selected for the program. This information is required to give employees (and their lawyers) the opportunity to see if the RIF disproportionately impacts employees 40 or over. Employers are advised to use their legal counsel to prepare any RIF or other employment release documents.

ADA — The Americans with Disabilities Act is a federal law that extends Title VII-like protections to disabled individuals. Like age discrimination, most Title VII guidelines apply to disability discrimination. One ADA‑specific issue arising in the pandemic is the level of documentation required from an employee returning from paid "Expanded" FMLA or Emergency Sick Leave ("ESL") under the FFCRA. For example, if an employee needs to take ESL because she has been diagnosed with COVID-19, some employers want a physician’s note confirming the employee is safe to return to work. Such return to work/fitness for duty documentation is normally appropriate. However, the U.S. Equal Employment Opportunity Commission ("EEOC") has realized what many employers were already finding out—physicians may be too busy treating patients or are unwilling to sign a document stating an employee is COVID‑19 free, especially without an actual COVID‑19 test. In light of limited availability of those tests, that leaves the employee with no way to satisfy the employer’s requirement. The EEOC has suggested that new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp or an e-mail to certify that an individual does not have the pandemic virus. For a deeper analysis of this particular issue, please see our article on the topic.

In closing, this article is not intended to cover every federal, state or local law regarding employment discrimination, but is directed toward normal day‑to‑day employment issues. Employers are strongly urged to consider Title VII, ADEA and ADA obligations before instituting any sort of wage reduction or layoff. At the very least, employers should review the helpful guidance published by the EEOC and follow up with legal counsel as necessary. The last thing an employer needs in this situation is to trigger a discrimination charge or lawsuit. When the COVID‑19 dust settles, employers who remember these obligations will be in a better position to avoid or minimize possible exposure. Employers who move too quickly in making these decisions, even if well-meaning and not intentionally discriminatory, could pay a price.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.