Is your business making mistakes that could result in COVID-related EEOC complaints? Here’s how to prevent costly missteps.

Amid the stress, difficulties and uncertainty of a pandemic, it’s important to be especially vigilant about how you interact with your employees. Otherwise, you make your business vulnerable to COVID-related Equal Employment Opportunity Commission (EEOC) complaints.

What’s behind the uptick in COVID-related EEOC complaints

COVID-19 is a widespread virus that’s having a tremendous impact on millions of individuals and workplaces simultaneously – across the U.S. and the world.

Employers not only have to comply with conventional employment laws, but they must also adhere to frequently updated and sometimes contradictory guidelines about safe work practices from:

  • State and local health departments
  • Mayors
  • Governors
  • The White House
  • The Centers for Disease Control (CDC)
  • The World Health Organization (WHO)

In response to the national economic distress, employers have been forced to make difficult decisions about issues like:

  • Where employees work
  • Adapting work schedules
  • How to maintain business operations
  • Adjusting job roles

Some of the toughest decisions have involved changes to employee compensation and whether to furlough or lay off team members.

To complicate matters, COVID-19 has proven to be a fluid and ever-evolving situation. Often, employers’ decisions have had to be made quickly. You might say that they’re “building the parachute on the way down.”

A stressful environment certainly isn’t conducive to making well-thought-out, clear-headed decisions with wide-ranging, long-term impact.

In general, challenging times bring out both the best and the worst in people.

COVID-19 has created the perfect storm. As employers navigate these rough and uncharted waters, the potential is great to make mistakes and enable exposure to liabilities.

Common COVID-related EEOC complaints – and what employers should do to prevent them

1. Retaliation

According to recent EEOC data, the top complaint from employees by far is retaliation. In 2019, the EEOC received 39,110 complaints of retaliation – accounting for 53.8 percent of all charges filed with the EEOC that year. This is on trend with the data from previous years.

Retaliation is when an employer takes adverse action against an employee as punishment for:

  • Filing a discrimination complaint with the EEOC
  • Confronting their employer directly about behavior that they perceive to be discriminatory
  • Requesting accommodations under certain employment laws related to a protected class, such as disability

It’s the last scenario that has become prevalent in the pandemic era.

As a result of the COVID-19 pandemic, growing numbers of employees have filed complaints that they were laid off or had pay reduced as retaliation for taking emergency sick leave or expanded leave under the Family Medical Leave Act (FMLA), both of which are mandated in the Families First Coronavirus Response Act (FFCRA).

This FFCRA was passed by the U.S. Congress in March 2020 to protect individuals who are:

  • Personally infected with COVID-19
  • Caring for a family member infected with COVID-19
  • Caring for a child whose school or place of daycare is closed

Until the law sunsets at the end of 2020, employees who take these types of leave must continue to be paid at two-thirds the regular rate of pay for a set period of time, with overall payment caps in place.

(Refusing to allow employees to take emergency sick leave or expanded FMLA leave isn’t only a violation of the FFCRA. It’s also a violation of the Americans with Disabilities Act. More on that below.)

COVID-19 has wrought so much economic devastation. However, what you as an employer view as a response to financial hardship isn’t always so clear to employees. They may view their lower pay rate or departure from the company as an ill-timed action coinciding with an extended sick leave.

The solution: Be able to demonstrate that your actions weren’t retaliatory but were a business necessity.

  • Work closely with your human resources (HR) team or professional employer organization (PEO) to determine the most critical roles to keep your company afloat during COVID-19.
  • Determine which employees would be most adversely impacted by layoffs or pay reductions.
  • Try to preserve those jobs and pay levels when possible. But, ultimately, you must do what’s best for the business.

Carefully document these meetings with HR or your PEO. Your goal is to be able to show that these actions were decided in a legal, non-discriminatory way. It should also be apparent that these actions affected multiple employees, not any single individual who may have taken sick leave.

Implement a sick-leave policy focused on COVID-19 that:

  • Encourages employees to stay home if they experience certain symptoms
  • Dictates the amount of time they should be out of the office in self-isolation
  • Specifies whether a negative COVID test is required to return to work once symptoms have subsided

This demonstrates to employees at the outset that you’re taking the virus seriously and are doing what you can to control the spread. The implication is that no one will be punished for following the policy and taking sick leave.

2. Violations of the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) protects employees against workplace discrimination on the basis of a physical or mental disability.

A major part of the ADA is the requirement that employers engage in the interactive process (a conversation) with any employee who needs a workplace accommodation to be able to perform the essential elements of their job because of a qualifying disability.

The goal is to arrive at a mutually agreed upon accommodation that doesn’t significantly disrupt operations or place an undue hardship on the business.

COVID-19, with its extensive recovery period and varied long-term side effects for some, qualifies as a disability. Once an employee no longer tests positive for the virus, ongoing side effects impacting the ability to work could include:

  • Fatigue
  • Shortness of breath
  • Recurring headaches or dizziness
  • Blood clots, which could lead to stroke
  • Other respiratory, cardiac and kidney issues with varying degrees of severity

Having underlying medical issues or a condition that compromises one’s immune system also qualifies as a disability. This is because employees with these pre-existing health conditions have a greater risk of experiencing a negative outcome if they contract the virus. Many employees are fearful to come to work because of possible exposure to the virus.

Some examples of COVID-related non-compliance with the ADA are employers refusing to allow:

  • Necessary time off for illness and recovery, or to take care of children, spouses and parents
  • Flexible work schedules
  • Work-from-home arrangements

The end result is that employees claim to the EEOC that they have been forced to choose between their livelihoods and their personal health.

The solution: Follow the FFCRA mandating emergency sick leave and expanded FMLA leave (if applicable). Work with employees to find reasonable accommodations.

For disabilities:

  • Engage in conversations with employees, and ask how you can help them.
  • Try to be creative with your solutions.
  • Demonstrate your caring and flexibility in these unprecedented times.

Carefully consider whether you can reasonably accommodate remote work or flexible work schedules, given your type of business and operations, along with other situational factors.

If working from home is feasible, allow it. Review job descriptions to see which tasks can be done remotely versus which tasks can be shifted to or shared among colleagues.

Of course, not all jobs can be performed remotely. But perhaps there are other, less obvious ways in which you can accommodate an employee. This is why back-and-forth dialogue is so important.

Document all ADA-related conversations with employees in personnel files. Include a detailed explanation supporting your decisions.

For more information about COVID-19-related issues with the ADA, including the medical documentation required for certain leaves, please review EEOC guidelines.

Note: You can ask whether an employee has tested positive or negative for the virus when approving leaves, but the medical documentation that an employee is required to produce for their personnel file varies by state and locality.

3. Age discrimination

Older people – those aged 65 and up – are among the most vulnerable to severe illness associated with COVID-19. Because most employers care about their employees and want to keep them safe, it’s OK for you to tell older employees not to come work, right?

Wrong.

According to the EEOC, you can’t legally target any group of employees who fit into a protected class – and age is among those.

If yours is a business that can’t accommodate remote work, you’re essentially telling older employees that they’re being excluded from work and deprived of their ability to earn a living solely based on their age – even if they have no symptoms of COVID-19 or have tested negative for the virus. This is an example of age discrimination, a violation of the Age Discrimination in Employment Act (ADEA).

You may have good intentions, but in this scenario you’d run afoul of the law and potentially create financial distress for your older employees.

And the reality is, younger people have gotten very sick from COVID-19 – albeit in lower numbers. It’s impossible to know for sure who’s going to become critically ill based on certain characteristics.

The solution: Treat all employees equally and fairly.

Keep all your employees updated on the latest information about populations most susceptible to COVID-19, as well as guidelines for staying safe in the workplace such as wearing masks and physical distancing.

You can warn people of their risks and share valuable information, but you can’t make the decision to exclude from work only a certain group of people based solely on characteristics that happen to be a protected class.

If working from home is feasible and doesn’t disrupt your business, allow it. But you should provide this option for all employees, not just certain groups of employees.

4. Discrimination or harassment based on national origin

We said it before: Challenging times bring out the best and the worst in people. When current events such as COVID-19 create tensions among employees, the worst in people can be brought out.

  • COVID-19 originated in Wuhan, China.
  • Growing complaints about discrimination against Asian employees have been reported.
  • It only takes one under-the-breath comment to trigger an EEOC complaint about discrimination or harassment based on national origin – a protected class.

Remember, EEOC complaints don’t always concern behavior from managers – they also encompass behavior among peers in the workplace.

The solution: Make it clear from the outset that this behavior won’t be tolerated in your workplace, and back up your words with action.

You should already have an equal employment opportunity (EEO), or nondiscrimination, policy in place that outlines unacceptable behaviors. You should also have a discipline policy for those who violate the rules.

Proactively send out an email to all employees reminding them of the EEO policy, and ask everyone to remain respectful of their colleagues.

As soon as you hear of an incident in which disparaging remarks were made:

  • Immediately address it with those employees.
  • Let the employee who submitted the complaint know that you’re investing the matter and taking appropriate action.

Make sure your managers on trained on how to recognize discriminatory behavior and handle complaints.

How to handle COVID-related EEOC complaints

So, what do you do if a complaint has been filed with the EEOC against your company? The steps that you would take to handle EEOC complaints in our COVID-19 world are the same that you would take under normal circumstances.

One of the main things to remember is that you and your managers shouldn’t behave in any way that could be construed as retaliatory against any employee alleging discrimination. Retaliation is broadly defined – it could be subtle or blatant, encompassing a range of behaviors.

As soon as you become aware of an EEOC complaint, get your human resources (HR) team or professional employer organization (PEO) involved immediately before you unknowingly take any adverse action that could further complicate matters.

Summing it all up

For all the disruptions, stress and confusion that this virus has stirred up for employers and employees alike, the environment is ripe for making mistakes. Maintain awareness of the top four COVID-related EEOC complaints:

  1. Retaliation
  2. Violations of the ADA
  3. Age discrimination
  4. Discrimination or harassment based on national origin

It’s imperative that you understand the causes of these complaints so you know how to prevent them in the first place. Should an EEOC complaint be submitted against your company, involve your HR team or your PEO immediately and follow best practices in handling EEOC complaints.

To learn more about avoiding costly, time-consuming legal missteps in your workplace, download our free e-book: HR compliance: Are you putting your business at risk?

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