In its first all-virtual/remote video-cast hearing, the Equal Employment Opportunity Commission (EEOC) discussed workplace civil rights implications of the COVID-19 pandemic for employees and employers. (Transcript of the April 28, 2021 hearing is available here.) During the hearing, Chairwoman Charlotte Burrows acknowledged that the EEOC must help employers navigate the new workplace landscape created by the pandemic, including equal opportunity issues related to telework, public health announcements, and more. Commission members also acknowledged the need for EEOC guidance on COVID-19-related issues, such as accommodation under the Americans with Disabilities Act (ADA), vaccine incentives, mandatory vaccination policies, selection criteria for layoffs or furloughs, and return-to-work policies and challenges.
Not long after the hearing, the EEOC updated its guidance on COVID-19 to include additional information on vaccines, incentives, and the confidentiality of vaccination status.
The hearing itself included two panels of witnesses from, or representing, communities hit especially hard by COVID-19. Members of the Commission asked the panelists various questions to gain insight on how the EEOC should address contentious workplace issues. The first panel was comprised of a senior economist and policy expert, directors of advocacy groups representing Asian Americans, migrant workers, and women, and the presidents and executive directors of the Society for Human Resource Management and the Lawyers’ Committee for Civil Rights Under Law. Members of the Commission asked the first panel how, following months of extended periods of telework, the EEOC could help employers determine whether in-person work is an essential function. Panelists suggested the EEOC focus on retaliation, specifically in the context of changes in schedules and remote work, as well as establishing best practice guidance for safely returning to physical work sites, safety standards, and vaccination education. Other topics raised by the Commission in the first panel included: the type of guidance needed from the EEOC to address recent heightened awareness of discrimination toward the Asian American and Pacific Islander communities during the COVID-19 pandemic; whether retaliation claims have increased during the pandemic, and how the EEOC could reach affected vulnerable groups; and the type of vaccination incentives employers should offer.
The second panel included an expert on the American-Indian community, economics consultants, national labor and health policy experts, senior attorneys and experts with various organizations that combat disability discrimination, age discrimination, religious and national origin discrimination, as well as a Senior Vice President and Assistant General Counsel at the Center for Workplace Compliance (a national employer association). In response to Commission questions, the second panel recognized a pandemic-related increase in failure to accommodate claims, especially with regard to teleworking accommodations, as well as an increase in workplace harassment claims arising in new contexts, including virtually and in remote call settings. The second panel also discussed the need for guidance regarding vaccine incentives and mandatory vaccine policies to help employers avoid potential Title VII violations. With regard to harassment claims, panelists recommended a strong anti-harassment policy and modifications to training presentations to address some of these new contexts.
The EEOC is expected to issue additional guidance on these and other pandemic and post-pandemic workplace challenges soon.