With recent COVID-19 restrictions easing, especially in the workplace, employers might be faced with increasingly complex situations as employees begin returning to work.
One particular situation the Equal Employment Opportunity Commission (EEOC) wants employers to have no confusion over, is the return of older workers to the workplace. The EEOC’s website, which offers assistance for employers and employees with questions over COVID-19, has updated their guideline which give the following order regarding older workers.
Per the EEOC, an employer cannot exclude older employees from returning to work on site, even though public health officials have stated that the age group of people over 65 are at an increased risk of developing a severe case of COVID-19. Thus, the above order stands even if an employer has good intentions, like banning an older employer from returning to work as a way of shielding them from the virus.
The EEOC in their updated guidelines are upholding the Age Discrimination in Employment Act (ADEA), which prohibits businesses from age discrimination against workers over the age of 40 or older. This act, which forbids employers from excluding older workers from the workplace, stands even in a pandemic.
However, the EEOC has also communicated that “employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.”
If an older worker is seeking accommodations from their employers due to an existing medical condition then they would need to turn to the Americans with Disabilities Act (ADA). In their updated guideline the EEOC also wanted to clarify that the ADA does not give reasonable accommodations to workers who wish to avoid working on-site as a way to not expose their high risk family members to COVID-19.
Another key point the EEOC touched upon in their guideline was that workplace harassment, be it through email, call, or video chat, must not be tolerated and should be treated as seriously as on site harassment.
The EEOC also placed a heavy emphasis on harassment directed to those of Chinese or Asian descent and urges employers “to send a reminder to the entire workforce noting Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management,” as well as to remind employees that “harassment can result in disciplinary action up to and including termination.”
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