Keep EEOC rule in mind to avoid a tight spot during pandemic

A line of dialogue – “We’re in a tight spot!” – from the 20-year-old movie “O Brother, Where Art Thou?” could have been written about employers in 2020’s COVID-19 environment.

Warnings and requirements about what must be known by employers is daunting – as is the potential impact on a company’s bottom line. The financial implications not just of business loss, but of regulatory requirements in the midst of the pandemic, are daunting as well.

It’s not as if the virus hasn’t been tough on many employees; however, employers have the responsibility of trying to keep their business doors open so employees have jobs. In some respects, government has helped through the Payroll Protection Program and other actions, but in the end, it’s not a substitute for customers.

The Equal Opportunity Employment Commission’s (EEOC) purview illustrates just one such example of the regulatory challenges – and the potential dollar cost – for businesses.

The EEOC enforces workplace anti-discrimination laws. Its enforcement portfolio includes the Americans with Disabilities Act, Rehabilitation Act, Title VII of the Civil Rights Act, Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act (this, of course, doesn’t include the state and local laws and regulations businesses must follow).

Here’s the EEOC guidance in the single area of employers’ ability to require return-to-work employee testing for COVID-19: “Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.”

That’s just one sub-paragraph of one subject – the ADA – within page after page of subjects, each with multiple sub-paragraphs.

Topics in which EEOC has an interest are disability-related inquiries and medical exams; confidentiality of medical information; hiring and onboarding; reasonable accommodation; pandemic-related harassment due to national origin, race, or other protected characteristics; furloughs and layoffs; return to work; age; caregivers/family responsibilities; and pregnancy.

A sub-paragraph under “reasonable accommodation” focuses on “what types of undue hardship considerations may be relevant to determine if a requested accommodation poses ‘significant expense’ during the COVID-19 pandemic?”

The EEOC says that before COVID-19 came along, most such accommodations didn’t financially burden employers. Income loss and available discretionary funds are additional factors, affected by when, or if, business is allowed to resume operations.

Says the EEOC, “These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weight the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.”

The appropriateness of employer response to all of the above is in the eye of the beholder, the beholder in this case being the EEOC.

The immense pressures COVID-19 has wrought on society is forcing change in how businesses work and how they work with employees – assuming they can keep employees – or stay in business altogether.

In the turmoil created by the virus, businesses must nevertheless know EEOC’s rules and those of other regulatory agencies. Also, employers should speak with an experienced accountant about the costs involved.

Otherwise, as tight a spot as employers might find themselves today, they’ll be in a tighter one tomorrow.


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This article first appeared in KnoxNews.


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