The Equal Employment Opportunity Commission (EEOC) updated its employer guidance for COVID-19 in July 2022. While the COVID-19 pandemic has waned, the guidance provides useful insight and instruction on how to handle important workplace issues. The guidance is presented in a question-and-answer format, for example:
Might the pandemic result in excusable delays during the interactive process?
Yes. Some of the issues initially created by the pandemic that delayed engaging in an interactive process (a discussion about an applicant’s or employee’s disability) and/or providing reasonable accommodation may no longer exist. But, as the pandemic continues to evolve and new issues arise, it is possible that an employer may face new challenges that interfere with responding expeditiously to a request for accommodation. Similarly, reopening a workplace may bring a higher number of requests for reasonable accommodation. In all these situations, an employer must show specific pandemic-related circumstances justified the delay in providing a reasonable accommodation to which the employee was legally entitled. To the extent that evolving circumstances created by the pandemic cause a justifiable delay in the interactive process—thereby delaying a decision on a request—employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.
Do older adults have protections under the federal employment discrimination laws?
Yes. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals aged 40 and older. The ADEA would prohibit a covered employer (those with 20 or more employees) from excluding an individual involuntarily from the workplace based on being older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19. The ADEA does not include a right to reasonable accommodation for workers due to age. However, employers are free to provide flexibility to older workers; the ADEA does not prohibit this, even if it results in younger workers being treated less favorably based on age in comparison. SSA members can review all of the new guidance here.