EEOC updates under FFCRA and Covid-19
As the COVID-19 pandemic continues, the Equal Opportunity Employment Commission (EEOC) is reminding employers that they’re still prohibited from engaging in discriminatory practices covered by federal legislation. Here are some examples of major anti-discrimination laws that both employers and employees should review in the context of today’s unprecedented conditions.
Civil Rights Act
HIPAA in the COVID-19 Era
The COVID-19 pandemic raises issues relating to compliance with the Health Insurance Portability and Accountability Act (HIPAA). This law creates national standards for protecting sensitive patient health information from being disclosed without the patient’s consent or knowledge.
The core of HIPAA is the privacy rule, which protects the use, disclosure and control of certain health information by “covered entities.” It generally includes healthcare providers, health insurance plans and healthcare clearinghouses.
The primary goal of the privacy rule is to protect health information while allowing dissemination needed to promote high quality health care in accordance with the public’s health and well-being. It aims to balance permitting uses of information, when appropriate, with individual privacy rights.
Notably, in response to the COVID-19 outbreak, the U.S. Department of Health and Human Services (HHS) issued a limited waiver of certain HIPAA sanctions under the privacy rule to allow access to information for public safety reasons.
Accordingly, HIPAA rights are now under the microscope as individuals and businesses struggle to cope with the pandemic. Specifically, how should employers handle positive COVID-19 cases among workers? Employers must balance employees’ rights to privacy with the well-being of coworkers and customers. Consult with your professional advisors to devise formal policies and procedures to help manage the current situation.
The Civil Rights Act of 1964 is the granddaddy of all the federal anti-discrimination laws. Building on prior civil right legislation, Title VII of this law expressly bans employers from discriminating against job applicants and employees on the basis of race, color, national origin, sex or religion. Employers are also prohibited from retaliating against an employee who has “made a charge, testified, assisted or participated in” any charge of unlawful discrimination under the law.
The list of employers covered under Title VII include:
- Private employers with at least 15 employees,
- Federal, state and local government units,
- Employment agencies, and
- Labor organizations and labor-management committees and similar training programs.
The reach of Title VII is expansive. Protection extends to a full range of employment actions, including recruitment, selections, terminations and other decisions concerning terms and conditions of employment. In addition, it offers protection against sexual harassment and other forms of harassment.
Important: A particular requirement may be legal if it’s reasonably justified by the circumstances. For example, an employer may rely on a strength requirement for a job moving heavy furniture, but not for a position as a receptionist in its office.
A recent Supreme Court decision — Bostock v. Clayton County — extended Title VII workplace protections to gay and transgender employees. The Court held that firings of gay and transgender workers violated Title VII of the Civil Rights Act’s ban on employment discrimination “because … of sex” language. This ruling doesn’t change anything in states or cities that already have laws in place banning employment discrimination against gay and transgender people. However, all employers may want to review their policies, employee handbooks and manager training programs to ensure consistency with this opinion.
Pregnancy Discrimination Act
The Pregnancy Discrimination Act (PDA) — an amendment to Title VII — makes it illegal for employers to discriminate on the basis of pregnancy, childbirth or a related medical condition (such as a miscarriage). Not surprisingly, this law applies to the same group of employers covered by Title VII.
The law provides the following key benefits to employees and job applicants.
- Employers can’t refuse to hire applicants because of their pregnancy or pregnancy-related conditions. But that doesn’t mean an employer must hire a less qualified job candidate.
- Employers can’t require pregnant workers to meet special requirements regarding job duties unless all other employees are held to the same requirements.
- If a pregnancy-related medical condition keeps a worker from performing her job, the employer must provide the same accommodations that it provides for other temporarily disabled employees.
- Employers can’t prohibit pregnant employees from working or refuse to allow them to return to work after giving birth.
Americans With Disabilities Act
The Americans With Disabilities Act (ADA) is designed to protect people with disabilities in virtually every aspect of employment. This extends to:
- Hiring and firing,
- Job assignments,
- Benefits, and
- Other employment-related activities.
Generally, the ADA covers the same group as Title VII. Presumably, the law would also apply to furloughs instituted due to the COVID-19 pandemic.
What’s more, the ADA may protect people who don’t have a current disability, such as an employee with a history of cancer who is in remission. Along the same lines, the ADA offers protection to a person related to or associated with someone with a disability.
Important: If adapting to the individual’s needs would cause undue financial hardships, the employer isn’t legally obligated to incur those extraordinary expenses.
Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA) essentially protects employees 40 or older from “age discrimination.” Employers also can’t retaliate against a job applicant or employee who’s claiming ADEA rights. Generally, the list of employers the ADEA applies to is the same as Title VII, except the size threshold for private employers is bumped up from 15 to 20 employees.
The ADEA also protects workers from harassment based on age. Such harassment may include offensive or derogatory remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments or nonserious isolated incidents, these instances become harassment if they:
- Occur so frequently or severely that they create a hostile work environment, or
- Result in adverse employment decisions (such as demotion or termination of employment).
Important: A companion law, the Older Workers Benefits Protection Act (OWBPA), prohibits age discrimination relating to employee benefits. The OWBPA provisions are comparable to the ADEA.
The ADEA is especially relevant during the COVID-19 pandemic. Employers may be held liable for treating older workers differently as “high-risk” employees.
Equal Pay Act
The Equal Pay Act (EPA) requires employers to compensate men and women equally for equal work. The jobs don’t have to be identical, but they must be “substantially equal.” The actual job — not its title or description — determines if jobs are substantially equal.
The law covers all forms of pay, including:
- Overtime pay,
- Stock options, profit sharing and bonus plans,
- Life insurance,
- Vacation and holiday pay,
- Cleaning or gasoline allowances,
- Hotel accommodations,
- Reimbursement for travel expenses, and
If a pay inequality exists, the employer can’t reduce the wages of either gender to equalize the pay. But the EPA is littered with exceptions. Significantly, an employer can choose to pay men and women different salaries for doing equal work if the difference is based on seniority, qualifications, incentives or other factors other than gender. So, it may be difficult for employees to recover damages for an alleged violation.
Generally, all employers must comply with the EPA. This includes private employers — regardless of size — labor unions, the federal government, and state and local governments.
Immigration Reform and Control Act
The Immigration Reform and Control Act (IRCA) prevents employers from discriminating against applicants and employees according to citizenship or national origin. The law extends to all aspects of employment, including:
- Job assignments,
- Promotions, and
- Disciplinary matters.
The IRCA applies to the same group as Title VII, but the size threshold for private employers is just four employees.
Under the IRCA, it’s illegal for employers to knowingly hire or retain employees who aren’t authorized to work in the United States. The law imposes strict requirements for examining employee documents and verifying that those individuals are legally authorized to work in the country. The Immigration and Naturalization Service (INS) is responsible for implementing this law.
In a recent statement, EEOC chair Janet Dhillon said, “Amidst the challenges we are all facing during these uncertain times, the anti-discrimination laws the EEOC enforces are as vital as ever…. The EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior. Our collective efforts to create respectful workplaces for all our nation’s workers, even during these trying times, will enable us to emerge from this crisis stronger and more united.” Employers and employees should be aware of the main tenants of federal anti-discrimination laws during these uncertain times. For more information about these laws and EEOC enforcement efforts, visit the EEOC website or contact your HR or legal advisors.