COVID-19 Changes at the EEOC

By Lehr Middlebrooks Vreeland & Thompson, P.C.

June 25, 2020

This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. Ms. Furman can be reached at 205.323.9275.

The Equal Employment Opportunity Commission (EEOC), like almost everyone else, is doing some things differently since COVID-19 arrived, from office procedures to charge processing to even what is allowed under the laws it enforces.

Communicating with the Equal Employment Opportunity Commission (EEOC) and responding to charges filed with it have undergone a number of changes in the last few months. Although most companies are now trying to reopen in some form, the EEOC offices remain closed to outside traffic for now. All contact with it, including filing new charges, are either electronic (email or the portal) or by phone. Investigations are relying on documentary evidence and phone interviews which, for most investigations, is no different than pre-pandemic. Fewer mediation conferences are being held and none are in person. Employees tell me they have been advised to expect at least two weeks’ notice before the office sites reopen, and they have not heard anything further yet.

In an effort to preserve charging parties’ rights, the EEOC temporarily stopped issuing charge closing documents (right to sue letters) on March 21, 2020, unless the charging party specifically requests it. This document gives the charging party the right to file a federal lawsuit within 90 days. As a reason for this action, the agency cited its concern that people with pending charges might believe they had to choose between “jeopardizing their safety and protecting their right” to file a lawsuit during the COVID-19 pandemic. This time limit is statutory, and the agency has no authority to change it. EEOC has made no official announcement of this or any other change in its charge processing procedures but did confirm the above when questioned about it. It has not indicated when it will release the closure documents it has been holding.

EEOC has issued some guidance that could be helpful for those companies recalling employees or hiring new staff. Even though the Centers for Disease Control (CDC) has said that individuals over the age of 65 are at greater risk for severe illness if they contract COVID-19, an employer may not involuntarily exclude an employee from the workplace because of that risk. The Americans with Disabilities Act (ADA) does require reasonable accommodations be explored for disabled individuals who request them and might allow exclusion of an employee with a disability if her/his presence poses a direct threat. The Age Discrimination in Employment Act (ADEA), however, does not require accommodations but does permit employers to favor older workers. Thus, workers over 65 can be offered more flexibility than younger ones but cannot be mandated to follow different rules. There is no requirement that employees who live with or are caregivers to people at higher risk be allowed to telecommute but, if they are allowed to do so, the employer needs to have a policy and apply it consistently. EEOC also stated that telecommuting is not the only way to help older and at-risk workers minimize contact with others – adjusting work schedules, moving workstations to lower traffic areas and providing protective gear are options for consideration.

EEOC has recently clarified that, when employees do return to worksites during a pandemic, employers do not violate the ADA by asking if workers are experiencing symptoms of the virus, measuring their body temperature and/or testing for active COVID-19 infection with an accurate and reliable test. The antibody test (which determines whether the worker has ever been infected) does not meet the ADA’s standard for medical examinations and cannot be mandated by covered employers.

While some medical information is now allowed to be collected during a pandemic, employers must protect employee medical data. Under the ADA, all health information must be maintained in a confidential file separate from employee personnel records. Access to these records is strictly need-to-know. Also, there are many privacy laws around the country that may need to be considered when maintaining such records. Employers may not disclose the identity of any employee who tests positive for COVID-19. Without disclosing identifying information, they should notify other employees with whom that individual has interacted of the potential exposure and encourage them to be tested. If an employee requests an alternative method of screening because of a medical condition or religious belief, the employer should treat it as any other request for accommodation under the ADA or Title VII.

As employees come back together in the workplace, employers should be cognizant of discrimination or harassment related to COVID-19. Workers of Asian (particularly Chinese) descent and older workers have been identified by EEOC as potential targets. Employers should watch for signs of harassment of these groups and take immediate corrective action.

EEOC has been releasing guidance regularly for maintaining compliance with laws as the workplace evolves. As we receive that guidance and information on EEOC’s processes, we will let you know.