Covid-19 And Anti-Discrimination Laws: Policy Pitfalls To Avoid

How to provide a safe and inclusive workplace

As vaccination rates climb and states increasingly ease Covid-19 restrictions, employers are faced with the difficult task of charting a course that protects the safety and health of their employees, customers and clients while setting the organization up for success after a difficult year. While many employers may be inclined to err on the side of caution as they contemplate a return to normal operations, it is important to ensure that even well-intentioned Covid-19 health and safety measures do not discriminate against or disproportionately burden individuals based on a protected characteristic, such as race, religion, nationality, sex, age or disability. In addition, employers considering mandatory vaccination policies must ensure that these policies include a procedure for employees to request an exemption for a medical condition or a sincerely held religious belief.

Covid-19 Risk Factors and Accommodations

According to the Centers for Disease Control and Prevention (CDC), some groups, including older adults, people with certain underlying medical conditions, and pregnant individuals are more likely to experience severe illness from Covid-19 than others. However, it is not the employer’s role to make assumptions about its employees’ risk levels, and attempting to do so can run afoul of antidiscrimination laws.
 

For example, the federal Age Discrimination in Employment Act (ADEA) prohibits age discrimination against workers age 40 and older, and many state laws extend age discrimination protections to additional age groups. Although older people are generally at higher risk for severe illness from Covid-19, an employer that acts on this information by selectively excluding older workers from the workplace, while not doing so for younger workers, would likely be in violation of the ADEA. The same logic holds true for others likely to be at higher risk from Covid-19.

However, if an employee raises a concern, that is a different situation, and depending on the circumstances, the employer may have a duty to provide a reasonable accommodation under the Americans with Disabilities Act (ADA). For example, if an employee advises the employer that they have an underlying medical condition that may put them at increased risk for severe illness from Covid-19, the employer should engage in the interactive process in an effort to reasonably accommodate the employee in a way that does not pose an undue hardship to the organization.

Notably, the ADEA does not include an accommodation provision requiring an employer to grant an older employee's request for an accommodation based on Covid-19 concerns. However, if an employer provides a similar accommodation to comparable workers, it should not treat an older worker differently. In addition, in some instances, the accommodation request may be covered under the ADA. Further, according to the EEOC, the ADEA does not prohibit employers from providing flexibility to workers age 65 and older, even if it results in younger workers ages 40-64 being treated less favorably based on age.

Discrimination and Harassment Concerns

With the widespread use of remote work during the pandemic, discrimination and harassment may be less visible—but no less present. While remote work undoubtedly poses a challenge to employers’ efforts to monitor and guard against these issues, employers are not excused from their responsibility to do so. Sadly, employees of Asian descent may be particularly likely to be targets of discriminatory and harassing behavior—or even hate crimes—and employers should exercise vigilance to prevent and address such incidents.

Harassment may occur through electronic communications such as email, chat communications, and videoconferencing programs. Employers should remind their employees of their policies regarding the proper use of company software and equipment, as well as the organization’s prohibition of discrimination, harassment and retaliation under Title VII and any applicable state and local laws. Employees should be encouraged to report any instances of discriminatory or harassing behavior, and the employer should investigate such reports promptly.

Vaccination Policies

Many employers see vaccination as the key to a return to some form of normalcy. However, if an employer is contemplating a mandatory vaccination policy—as opposed to merely encouraging Covid-19 vaccines—it is critical to include a procedure for employees to request an exemption based on a medical condition or a sincerely held religious belief.

Once an employee advises the employee of a medical condition that prevents them from receiving a Covid-19 vaccine, the employer must engage in the interactive process with the employee and consider whether a reasonable accommodation could either eliminate or reduce the risk so that the employee does not pose a direct threat to safety. Under the ADA, an employer may only exclude the employee from physically entering the workplace or take certain other actions, such as termination or demotion, if the unvaccinated employee poses a direct threat or a significant risk of substantial harm to their own health or others' that cannot be eliminated or reduced by a reasonable accommodation.
 
If an employee requests an exemption from vaccination because of a sincerely held religious belief, observance or practice, the employer similarly must provide a reasonable accommodation unless doing so would pose an undue hardship. However, the bar to establish undue hardship is somewhat lower for a religious accommodation under Title VII than under the ADA. Generally, an undue hardship for the purposes of religious accommodation will be anything more than a de minimis cost or burden.

Closing Thoughts

Many of these issues have no easy solution, and employers must balance an array of competing interests. As employers navigate the return-to-work process, they should take an approach centered on transparency and open communication, combined with a willingness to listen and respond to employees’ concerns and a commitment to providing a safe and inclusive workplace.

Emily Scace is a Legal Editor at XpertHR. As a member of XpertHR's editorial team, Emily Scace covers topics including employment discrimination and harassment, recruiting and hiring, and workers' compensation. Connect Emily Scace