Commission Chair Charlotte A. Burrows said, “Today’s testimony makes clear that, while the pandemic continues to have serious impacts on public health and our economy, it has also created a civil rights crisis for many of America’s workers.”
Challenges Facing Employers
According to the Commission, Michael J. Eastman of the Center for Workplace Compliance, “detailed specific challenges facing employers due to Covid-19, including how to keep the in-person workforce safe, whether to mandate vaccinations, and potential online harassment in the virtual environment.”
“It is beyond question that the pandemic has presented some of the most critical, intensive, and urgent workplace issues HR professionals have ever experienced,” Johnny C. Taylor, Jr., president and CEO of the Society for Human Resource Management, said in prepared remarks.
“The pandemic’s impact on workers and workplaces cannot be overstated as it deeply affects all workers in all areas of their work and non-work lives. The same is true for the pandemic’s disproportionate impact on women, minorities, older workers, and individuals with disabilities. Current statistics on the impact of the pandemic on the workforce show a clear picture of disproportionate job losses for minorities and women,” he said.
Tyler said the top pandemic-related equal employment opportunity concerns of HR professionals fall into the following categories:
Communicating with and educating employees about respectful workplace practices, especially as they relate to potential conflicts that arise in the workplace, including incidents of workplace threats, harassment, and violence on the basis of someone’s race or national origin.
Balancing equal employment opportunity obligations under Title VII, the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) confidentiality obligations, Occupational Safety and Health Act and related state law obligations to provide a safe workplace for employees while also respecting an employee’s privacy rights in the context of:
- Confirmed positive cases of Covid-19 in the workplace and in work interactions
- Information requests related to Covid-19 symptoms, testing, and vaccination status of an employer’s employees, customers, clients, and business partners.
Reviewing Policies, Practices, And Resources
Reviewing existing flexible- and remote-work policies, practices, and resources in light of the widespread need in certain industries and occupations to provide services from remote locations.
At the same time, many employers needed to address essential and other workers’ return to the workplace under vastly changed circumstances due to their individual family situations as well as significant alterations to the workplace.
Return To Work Practices
Developing and communicating employment practices with respect to employees’ ability to return to the workplace when a medical issue impacts either them individually or a member of their household.
Urgent Need For Guidance
Tyler told the Commission that, “Employers are in urgent need of guidance as they devise their return-to-workplace strategies. The EEOC can help facilitate a smooth and safe transition back to physical worksites by issuing clear and timely guidance that will assist employers and HR professionals in navigating a variety of issues.
“This guidance must give due consideration to the pandemic’s impact on businesses at a time when many organizations are struggling to survive, as well as maintain employment levels and critical benefit offering,” he said.
Tyler told said SHRM urges the EEOC to issue as soon as possible guidance or technical assistance that addresses the following:
- Does requiring proof of vaccination from employees run afoul of the laws that the Commission enforces?
- Can employers prioritize the return to in-person work for vaccinated individuals over unvaccinated individuals generally? If not, what limitations exist in doing so?
- In accommodating those who have religious- or disability-based objections to being vaccinated, can employers have unvaccinated employees work in separate areas or in teams that would allow those teams to continue masking and social distancing when states roll back such safety measures generally, or with respect to vaccinated employees?
- How should employers address requests from employees who want to remain remote workers when their employers want them back in the office?
- When considering accommodation requests that include a request to work remotely based on medical or caregiving needs, how should employers weigh the “precedent” that has been set by allowing employees who had previously been told they must work in the office to work remotely for the past year?
- What are the guardrails on vaccine incentives given the withdrawal of the EEOC’s proposed wellness rules?
Steve Beiser, a labor and employment attorney with the McGlinchey Stafford law firm observed afterwards that, “Witness testimony focused on the disproportionate impact of Covid on the lowest wage jobs, many held by communities of color, particularly women in these communities, older works, and employees with disabilities.
“While one commissioner indicated that there should an emphasis on hiring and retaining individuals with disabilities, the EEOC maintains its position that quotas based on protected characteristics remain illegal,” he said.
Suggestions For Improvement
Beiser noted that several suggestions were made by witnesses about the steps the EEOC could take concerning Covid in the workplace. They included:
- Provide clear guidance/guidelines regarding vaccinated employees and accommodation of employee concerns about returning to work, modified work schedules, and working remotely, particularly due to caregiver issues.
- Conduct webinars and provide short guidance —“bite size pieces of information”—which have been and would be particularly helpful.
- Explore ways for employers and employees to pose questions to the EEOC to avoid legal issues down the road.
Other suggestions included that:
- The EEOC update its 2017 guidelines regarding the prevention of harassment to include protecting employees from harassment related to the pandemic.
- Covid be considered an ADA disability and include people who had Covid, particularly Covid “long haulers” who cannot work like they did before Covid.
Illuminating Other Issues
Lauren Paxton, an employment partner at the Calcagni & Kanefsky law firm, said, “As we often find in EEOC public hearings, the Commissioners’ questions illuminated the wide range of issues the EEOC is contemplating.
‘Today, Vice Chair Jocelyn Samuels’ comments indicated that the EEOC is considering whether its resources would be best focused on hiring, retention, terms and conditions of employment (including compensation discrimination, harassment and treatment of pregnant workers), and/or ensuring reasonable accommodations in the workplace’
Paxton said. ‘The hearing offered business leaders several key takeaways as they formulate return-to-work plans. The hearing testimony suggested that employers reassess whether in-person work is an ‘ essential function’ of its workers’ jobs, before recalling its employees to the office.
‘Whether in-person work is formally designated as an ‘essential function’ is of paramount importance when an employee requests a reasonable accommodation for a disability under the law.
‘Generally, if a person cannot perform the ‘essential function’ of his or her job with or without an accommodation, the employee is not considered legally ‘qualified’. In such case, the employer has a lighter burden to meet when terminating or declining to employ such an individual,’ Paxton said.