There is no question that the COVID-19 pandemic has brought monumental changes and challenges to the workplace. In an effort to protect the health of workers, employers have faced new safety challenges, such as implementing safe workplace and social distancing guidelines within operating “essential businesses,” implementing safety precautions for the return of remote employees to the physical workplace, and responding to instances of potential COVID-19 exposure.
However, providing a safe work environment for employees isn’t just about limiting COVID-19 exposure. Employers must not lose sight of their existing obligations to prohibit, prevent, and respond to allegations of harassment and discrimination in the workplace. The U.S. Equal Employment Opportunity Commission (“EEOC”) has provided several updates to its guidance for employers regarding discrimination and harassment under the various Federal laws amidst the COVID-19 pandemic (located here and here). Below are some highlights and practical considerations for employers.
Harassment Based on National Origin, Race, and other Protected Characteristics
Recent news reports have suggested an increase in instances of verbal discrimination and harassment based on national origin and race (such as Asian Americans and those of Asian descent) due to the origination of the current coronavirus outbreak in Wuhan, Hubei Province, China. While many employers are not operating physical facilities in compliance with state stay-at-home orders, employers should keep in mind that such inappropriate comments and behavior can occur even when employees are not reporting to the physical worksite. For example, employees may engage in inappropriate behavior through remote communications on electronic platforms such as e-mail, text messaging, Slack, Skype, and Zoom. These platforms are extensions of the work environment and should be monitored in the same manner as physical work locations for instances of harassment or discrimination.
In its Technical Assistance Questions & Answers Q&As, the EEOC encourages employers to take steps to reduce the chance of harassment by explicitly communicating to their workforces that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristics. Employers should remind employees that it is against Federal law and their internal policies to harass or discriminate against coworkers based on race and national origin, and that all complaints will be promptly investigated. Such investigations should include interviews with both the complainant and the alleged harasser, witness interviews, and the review and preservation of relevant electronic data records. Additionally, employers should educate managers and supervisors on how to identify potential harassment or discrimination, and remind them of their key role in stopping inappropriate behavior and taking appropriate corrective action.
COVID-19 & Reasonable Accommodations
The Americans with Disabilities Act (“ADA”) protects applicants and employees from disability discrimination and requires employers to make reasonable accommodations that enable employees to perform the essential functions of their job unless the accommodation presents an undue hardship. Generally, temporary impairments (such as broken limbs and influenza) are not considered disabilities under the ADA. However, certain “high risk” employees may be entitled to reasonable accommodations if potential exposure to COVID-19 would complicate a pre-existing health condition or disability (for example, chronic respiratory ailments such as COPD or pulmonary fibrosis). Additionally, the EEOC guidance explains that qualified disabled employees who are classified as “critical infrastructure” or “essential critical workers” by the CDC and State orders are still covered by the ADA and entitled to reasonable accommodations absent undue hardship.
The EEOC’s guidance makes clear that employers should continue to engage in the interactive process with qualified disabled employees who request accommodations. This includes requesting information from the employee about why a requested accommodation is needed and asking the employee to provide documentation from a health care provider when the disability is not obvious or already known to the employer. The obligation to engage in the interactive process with qualified disabled employees is separate from the obligation to provide protected leaves of absence under other laws like the Families First Coronavirus Response Act, the Family and Medical Leave Act, and State leave laws – therefore, the provision of leave under these laws does not absolve an employer from considering reasonable accommodations after such leave is exhausted. Accommodation requests, including requests for extension of leave, should be evaluated consistent with the employer’s standard practices, taking into account the employee’s needs, operational considerations, and any associated costs to the organization.
Takeaways for Employers
To ensure compliance with federal and state anti-harassment and discrimination laws during this unprecedented time, employers should consider the following:
- Remind employees of your policies prohibiting harassment and discrimination in the workplace.
- Advise supervisors and managers of their specific role in watching for, stopping, and reporting harassment or discrimination, both in physical workplaces and when employees are engaging with one another remotely through electronic communications.
- Remember to engage in the interactive process when evaluating accommodation requests from qualified disabled employees.
- Act promptly to investigate allegations of harassment or discrimination and take appropriate action.
- Consider scheduling virtual harassment prevention training to educate employees about their rights and responsibilities under the law. Click here to learn about EANE’s upcoming Virtual and live harassment prevention training options.
Our HR Services Team is available to help employers navigate the challenge of harassment and discrimination prevention in the COVID-19 landscape. We invite our members with company specific questions to call us on the hotline.