Author: Emily Scace, XpertHR Legal Editor
April 29, 2021
Although the COVID-19 pandemic's impact was widespread, it was not distributed evenly among the workforce. This was a common refrain at the recent virtual public hearing of the Equal Employment Opportunity Commission (EEOC) on the impact of the COVID-19 pandemic on civil rights in the workplace.
According to Heidi Shierholz, PhD, Senior Economist and Director of Policy with the Economic Policy Institute, a key distinction became clear early in the pandemic between:
- Essential workers who could not telework,
- Workers who could not telework whose jobs were not deemed essential, and
- Workers who could telework.
Women and people of color are heavily concentrated in the first two groups, Shierholz noted, meaning that these groups were both more likely to put their health at risk to keep essential functions of society running and more likely to lose their jobs.
Although much has been written on the rapid growth of remote work during the pandemic, Shierholz cited data from the Bureau of Labor Statistics showing that the group of workers who could do so - and consequently were least likely to face job loss and income declines - is in fact relatively small, just over one third of workers at its peak in May of 2020. Black and Latinx workers were also less likely to be included in this group.
As the economy begins to recover, Shierholz urged employers and policymakers not to lose sight of these disparate impacts and to take the opportunity to improve upon, rather than simply return to, the pre-COVID norm.
Key HR Challenges Highlighted
Johnny C. Taylor, President and CEO of the Society for Human Resource Management (SHRM), called on the EEOC to address unresolved issues regarding vaccinations in the workplace, provide practical guidance on best practices for employers to ensure respectful workplaces and relieve certain negative impacts of the pandemic on workers with caregiving responsibilities.
Taylor also highlighted some of the critical challenges faced by HR professionals during the pandemic. These challenges included quickly creating and implementing new remote work policies, revising sick-leave and leave-of-absence policies to comply with rapidly shifting laws, supporting employees facing unprecedented work-life balance challenges, and addressing health and safety concerns.
Employers are in urgent need of guidance as they plan a return to their physical workplaces, noted Taylor, urging the EEOC to answer several key questions, including:
- Does it violate antidiscrimination laws for employers to require proof of vaccination from employees, and can employers prioritize return to in-person work for vaccinated individuals?
- Can employers have unvaccinated employees work in separate areas or in teams that continue masking and social distancing as an accommodation for those with religious or medical reasons for not being vaccinated?
- How should employers address employee requests to keep working remotely when such requests stem from generalized fear and anxiety about returning to work rather than from a disability-related reason that qualifies for a reasonable accommodation?
- How should employers weigh the precedent that has been set by allowing employees to work remotely for the past year when many of these employees were previously told they must work in the office?
- What are the guardrails on vaccine incentives, given the withdrawal of the EEOC's proposed wellness rules?
Taylor also discussed the severe consequences of the COVID-19 pandemic on women, particularly women of color, who are more likely to bear caregiving responsibilities and who have left the labor market in higher numbers than other groups during the pandemic. While flexibility is key to returning women back to the workplace, Taylor stressed that "flexibility is not limited to working from home full time" and emphasized the importance of an empathetic approach that helps employees achieve work-life balance while also furthering business goals.
Guidance Sought on Vaccine Policies
Michael Eastman, Senior Vice President and Assistant General Counsel for the Center for Workplace Compliance, echoed many of Taylor's themes in imploring the EEOC to provide additional guidance for employers related to discrimination-related challenges of the pandemic, particularly vaccination policies. Specifically, he recommended that the EEOC enhance or develop guidance that:
- Clearly indicates that employers may establish mandatory vaccine policies for their in-person workforce (subject to reasonable accommodations under Title VII and the ADA);
- Addresses the potential disparate impact of mandatory vaccine policies and how employers can mitigate that risk;
- Details how employers should assess vaccine requirements imposed by clients or customers;
- Assesses how vaccine credentialing programs or systems could impact workplace antidiscrimination laws;
- Provides more context about when in-person work is an essential function of a job; and
- Describes how employers should assess requests for stress and anxiety-related reasonable accommodations during the pandemic and implementation of return-to-work policies.