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EEOC Warns Against Barring “Higher Risk” Employees from the Office


Recently, the EEOC updated its technical assistance to address some of necessary considerations for employers that have employees returning to the workplace who are at higher risk of severe COVID-19 illness.

The CDC has explained individuals age 65 and over are at a higher risk for a severe case of COVID-19 if they contract the virus. Although employers may think keeping these employees from the office is in the employee’s best interest, the EEOC warns such conduct violates the Age Discrimination in Employment Act (ADEA). The EEOC notes the ADEA prohibits a covered employer from “involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee from COVID-19.

However, employers are “free to provide flexibility” to employees 65 and over, even if it results in employees younger than 65 being treated less favorably based on age in comparison.

The EEOC also made clear that Title VII prohibits the involuntarily exclusion of an employee from the workplace due to pregnancy, even if motivated by benevolent concern, and prohibits otherwise singling out employees on the basis pregnancy for adverse employment actions, including involuntary leave, layoff or furlough. However, pregnant employees may be entitled to certain job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. The EEOC reminds employers to analyze accommodation requests for pregnancy-related medical conditions under the usual ADA and Title VII rules.