SUMMER 202 0 TODAY’S GENER AL COUNSEL
WORKPLACE ISSUES
EEOC Compliance and the Covid-19 Pandemic By Barry A. Hartstein and Therese Waymel
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he Equal Employment Opportunity Commission (EEOC) has established new rules and guidance to help employers navigate the Covid-19 pandemic. There are limits, however, to employers’ conduct to stem the spread of the virus, and Covid-19’s crippling economic effects also increase the risk of discrimination claims against employers. EEOC first issued guidance on pandemic preparedness in the workplace and the Americans with Disabilities Act (ADA) in October 2009, after President Obama declared a National Emergency in response to the H1N1 influenza pandemic. However, less drastic steps were approved because the virus was not as widespread, and it was less contagious and less deadly.
Barry A. Hartstein is a shareholder with Littler Mendelson and co-chair of the firm’s EEO & Diversity Practice Group. He has more than 40 years of experience counseling employers on EEOC matters on a local and national level. bharstein@littler.com M. Therese Waymel is an associate with Littler. She represents companies in labor and employment litigation, including disputes involving wrongful termination, unlawful discrimination and retaliation. twaymel@littler.com
On March 19, 2020, the EEOC “re-issued” the guidance after Covid-19 was declared a pandemic by the World Health Organization, and additional input was provided by the Centers for Disease Control and Prevention (CDC). This finding has resulted in the EEOC permitting employers far more leeway in developing infection control strategies without violating federal discrimination laws. As employers have developed infection control strategies, the EEOC’s primary focus has been on the ADA, but the EEOC also cautioned against certain conduct that may run afoul of the Age Discrimination in Employment Act, Pregnancy
Discrimination Act and other discrimination laws. The EEOC also has reminded employers of practical tools available to address potential workplace harassment stemming from Covid-19. ADA COMPLIANCE
Based on the view of the EEOC at the time of this writing, it is unclear whether Covid-19 is or could be a disability under the ADA. Regardless, in relying on the findings of the CDC and other public health authorities, the EEOC has determined that the pandemic meets the “direct threat” standard under the ADA. This determination has resulted in per-
