Age and pregnancy discrimination concerns may arise as employees return to their regular worksites from Coronavirus-related remote work, says a new report for Congress examining the impact of several laws that apply to federal employees among workers in general.
While the EEOC has put out several sets of guidance on implications under the Americans with Disabilities Act and the Rehabilitation Act, the Congressional Research Service report notes that the “other groups not necessarily covered by the ADA and Rehabilitation Act also face increased risk of severe COVID-19 illness.”
Because older persons constitute one of those groups, “employers may consider making workplace changes” to protect them within the Age Discrimination in Employment Act, it said. “Voluntary actions (such as offering work at home or schedule changes) and neutral actions (such as spacing out workstations for older workers when the stations are equivalent) would generally not violate the ADEA.”
Further, the ADEA does not prevent employers from giving older workers employment advantages denied younger workers “such as telework opportunities, flexible schedules, protective equipment, or options for social distancing. Younger employees left without these advantages cannot claim age discrimination,” it said.
Under that law, it added, employers “generally cannot single out older workers and alter their employment conditions”—which means for example that they “may not send older workers home and put them on mandatory telework or involuntary leave because of increased COVID-19 susceptibility.” However, because the ADEA—unlike disability protection law—has no provision for required accommodations to the employee, “an employer need not grant older employees’ requests for special precautionary measures in response to the COVID-19 pandemic.”
The report noted that while the CDC has recommended that pregnant women take heightened precautions, Pregnancy Discrimination Act also has no provisions for accommodating any special needs. “At the same time, employers cannot deny pregnant women pandemic-related adjustments—such as leave, flexible schedules, protective gear, or work at home—granted other employees with a similar ability to work. And if a pregnancy-related complication is so limiting that it amounts to a disability, whether or not tied to the pandemic, the pregnant employee enjoys ADA protections,” it said.