Systemic discrimination and the civil rights impact of the COVID-19 pandemic are “on the front line,” for the US Equal Opportunities Commission in the latter part of 2021, EEOC Chair Charlotte Burrows told attendees during 2021 Society for Human Resource Management Conference September 9th
But in their questions to Burrows and Commissioner Keith Sonderling, HR experts were quick to address the COVID-19 vaccination orders.
The couple were first asked about exceptions for people citing a righteous religious belief that would prevent them from receiving a COVID-19 vaccine.
Both began their responses by reminding participants of the federal purview of the EEOC and the potential impact of state and local laws on vaccine mandates. In addition, the commissioners avoided details and made it clear that they would not offer legal advice.
“I would just say that you should just think about it,” said Burrows. “Federal law is a lower limit, not an upper limit. Civil rights at the state level can therefore offer more protection, but they cannot offer less protection than at the federal level [law] sits. “
Shortly thereafter, an audience member asked about the challenge of ensuring equity on vaccine mandates in the face of the COVID-19 vaccination inequality between races and ethnic groups.
Burrows said employers need to be aware of the factual nature of such challenges. “Whether you are in Iowa, Texas, Florida, or anywhere else in the country, the question is why,” she continued. “Some of them can only be asked by your employees […] I’m just trying to find out what the barriers are. “
Access to vaccines has improved since US vaccine rollout began, but employers may have to rely on a mix of education and incentives, and that combination may not look the same to all employers, Burrows said; “I don’t think it’s one size fits all.”
In May, EEOC has published a technical support document Outline the conditions under which employers may need to conduct an interactive process with workers who are entitled to reasonable accommodation, in particular vaccination exemptions.
Under Title VII of the Civil Rights Act of 1964, those with a sincere religious belief, practice, or habit that would discourage them from vaccination fall under this definition, although the accommodations need not pose undue hardship for the employer’s business to run, per EEOC .
The agency expects to release additional guidance by the fall, Burrows said, and this could potentially include information on whether “long-range COVID” from the Centers for Disease Control and Prevention is also called “long-range COVID” or “post-acute COVID” “including disability under the Americans with Disabilities Act.
On this matter, Burrows referred to guidelines from other federal agencies, including the US Department of Health and Justice. In particular, HHS guidelines stated that COVID is considered a disability within the meaning of the ADA if it significantly restricts one or more important life activities.
“We’re constantly thinking about how … we update the guidance on our website,” said Burrows of the technical assistance document. “It’s not a static document because it wasn’t a static situation.”
Two ADA questions attract applause from the crowd
One audience question came from a Texas disability program manager who asked about the rise in remote working. Employees at his organization are realizing their potential travel and childcare savings by working remotely, resulting in increased inquiries, he said. The manager said he estimated that “30% -35% of the cases I resolve through the interactive process are manipulative, abusive, or otherwise portrayed in bad faith.”
The manager then asked if the EEOC planned to provide guidance on how to deal with abusive practices in the ADA process. His question received applause from the live audience.
“I’m not entirely sure which practices are considered abusive,” said Burrows. “What I hear behind this question is that this is a difficult thing.”
The chair compared teleworking policies during the pandemic to cuts in sidewalks; “We go up there whether we need a mobility device or not. But the curbs are not for us, and it’s similar to teleworking.”
Burrows went on to say that federal law allows employers to avoid improper precautions, but the scenarios are not always clear-cut. “If it is convenient for someone but not in the employer’s interest and there is no disabled reason from our point of view and the EBO laws, that’s the end of the story,” she said. “I think there are difficult problems on both sides and we see abuse on both sides.”
Nerd gave a similar answer, pointing to the importance of defining the essential functions of an employee’s job. He added that the interactive process is on an individual employee basis, not an entire department of the workforce.
A separate audience question, which also received applause, sought information on the agency’s position on an initiative to combat fraudulent claims by workers, particularly those related to small businesses that may not have extensive resources or human resources.
“I mean the staff, if they do that, they have the right to file under our laws and they must testify under oath that these claims are correct,” said Sonderling. “If you believe or your company believes that the statements are fraudulent, let the EEOC know in your statement […] This process has existed since the 1960s and is getting nowhere. “
Burrows added that the agency would like to know if an employer suspects employee claims are fraudulent. “We have more than enough to do, so whatever you can point us out will help […] We’re looking for those who have merit, “she said.” We don’t have to waste time doing something that doesn’t.
To diversity initiatives and EEO-1
EEO-1 reporting came up a number of times during the panel, initially in connection with reporting on wage data. Burrows said the commission was “waiting eagerly for the results of a national academy of science, technology and medicine.” Analyze the report the wage data collected from employers as part of EEO-1 component 2 for the calendar years 2017 and 2018.
She added that the organization would make recommendations to the EEOC which “will hopefully help inform our work in this area”.
An audience member asked how employers can address EEO-1 coverage for diversity categories that the current spending of the forms may not cover. Burrows said employers can voluntarily note in their EEO-1 that employees may want to indicate other genders, for example, which are not necessarily recorded and designated by EEO-1.
Regarding EEO-1 coverage and multiracial staff, “EEOC is exploring how to do this in a way that reflects the growing diversity of the country but is still usable for us,” added Burrows.