Today the EEOC updated its Technical Assistance Questions and Answers (Q&A), “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
Among the updates, the EEOC provides Q&A guidance regarding: requests for accommodation (Q&A D.13, G.7); pandemic-related harassment in the context of telework (Q&A E.4); return to work guidance (Q&A G.6, G.7); and other questions related to age discrimination (Q&A H.1), pregnancy discrimination (Q&A J.1), and sex discrimination involving employees with caretaking or family responsibilities (Q&A I.1).
The EEOC also touches on an issue that all employers will undoubtedly face as employees return to work, namely, whether an accommodation is required for an employee who is not disabled, but whose family member may be at high risk for contracting COVID-19 due to an underlying condition. The EEOC’s June 11 Q&A D.13 states:
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?
No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.
For example, 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.
Of course, an employer is free to provide such flexibilities if it chooses to do so.
An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.
It is clear that employers are not obligated to provide a reasonable accommodation to an employee without a disability due to that person’s association with someone with a disability. However, when the requested accommodation is teleworking – as it will likely be – employers should undertake a review of past practices to ensure that all employees are treated equitably. This means that where employers have freely allowed teleworking for similar positions, they should then respond in a consistent manner to any employee who seeks to telework as an accommodation due to a family member’s underlying medical condition, which may constitute a disability. Failure to do so could present the risk of an associational discrimination claim. See EEOC, “Questions & Answers: Association Provision of the ADA,” #4.
Kelley Drye will continue to stay up to date on federal and state guidance that will impact your return to work considerations. As always, please reach out to your Kelley Drye professional for advice on these and other matters.