The Coronavirus pandemic has delayed the deadline for employers to file both their 2019 and 2020 EEO-1 Component 1 data to March 2021, the Equal Employment Opportunity Commission (EEOC) has announced.
In a separate development, the commission also clarified its requirements for employers who have among their workforce persons who are especially vulnerable to the Coronavirus.
In regard to the changes in the EEO-1 report deadlines, the EEOC says that the delays are because of the pandemic and are “consistent with delays in federal reporting requirements across the government and other actions taken to relieve employers of unnecessary burdens during this crisis.”
Collection of data for EEO-3 (applicable to local referral unions) and EEO-5 reports (applicable to public elementary and secondary schools) also are being delayed as well. The EEOC said that it expects to begin collecting this data on a specific date that will be determined in January 2021.
The commission had announced prior to the COVID-19 outbreak that it would no longer collect Component 2 data, an additional requirement that had been adopted by the Obama-era EEOC and which imposed massive new data requirements on employers. Employer groups objected to the extraordinary data-gathering burden and expenses the new report imposed on them.
The Trump Administration and new EEOC sought to kill the Component 2 form, only to see it resurrected by a federal judge. Employers were required by the court to file that data last year, which stretched into early this year after the judge presiding over the case dictated that the commission had not gathered enough reports last fall.
In spite of these developments, the EEO-1 Component 1 data has continued to remain in force since it was first imposed by federal law 48 years ago. All employers with at least 100 employees are required to file these reports annually with the EEOC. They also must be filed by federal government contractors and first-tier subcontractors with 50 or more employees and at least $50,000 in contracts.
Under the 1972 law, all of these employers are required to report on the racial, ethnic and gender composition of their workforce by specific job categories. Under normal circumstances, EEO-1 data reports must include employment data from a “workforce snapshot period,” which consists of any two-week pay period from October through December.
More COVID-19 Confusion
On May 5, the EEOC issued what it intended to be a guidance memo regarding its requirements for how employers can deal with those among their workforce who are considered members of populations especially vulnerable to the COVID-19 virus. Unfortunately, the guidance turned out to be so confusing that the commission was forced to withdraw it and then issue a new clarification just two days later.
The guidance pertains to dealing with employees who have medical conditions that might cause them to be especially susceptible if they are exposed to the COVID-19 virus, or who might be at a much higher medical risk than the general population if they come down with the disease.
“Many times, these underlying medical conditions will be considered ‘disabilities’ within the meaning of the Americans with Disabilities Act (ADA). For example, employees with diabetes, or who are immunocompromised, are considered vulnerable,” notes Robin Shea, a partner in the law firm of Constangy Brooks Smith & Prophete.
She cites the example of an employer who is bringing all of its employees back to work, including one or more who are immunocompromised, raising concern that these individuals may be in danger if they come back to work and end up being exposed to Coronavirus by doing so.
Shea points out that if an employee doesn’t request reasonable accommodation, then the employer is not required to accommodate. (The employer can choose to accommodate the vulnerable person seeking an accommodation, but it isn’t required to.)
Even if the employer is concerned about this person’s safety, it can’t “exclude the employee—or take any other adverse action” on that basis, unless there is a “direct threat” to the vulnerable worker’s health or safety. (This also applies when an employee’s condition creates a “direct threat” to the health and safety of others.)
Keep in mind that the “direct threat” standard is a tough one to meet, Shea stresses. The employer cannot base its decision only on the fact that an employee is “immunocompromised.” Instead, the employer would have to make an “individualized assessment,” taking into account the person’s condition as well as the work environment.
For an employer who chooses to invoke the “direct threat” standard, it isn’t enough just to show the existence of an elevated risk of harm, Shea points out. The employer has to show “a significant risk of substantial harm” which considers the duration of the risk, “the nature and severity of the potential harm,” the likelihood of harm, and the imminence of the harm—as applied to the individual and the work environment.
In the context of COVID-19, the employer also is expected to consider the risk of contracting it in the geographical area of the worksite—for example, an employer in New York City might be able to take more aggressive steps to protect this person (whether he or she wants it or not) than an employer in Wyoming, Shea explains.
“The employer should also consider the effect of the measures that it was already taking with respect to all employees—for example, social distancing requirements, temperature monitoring, or requiring use of masks in common areas,” she says.
The employer also must consider whether there are reasonable accommodations that would reduce the risk below a “direct threat” level. For example, can an office worker be allowed to work with the door closed, and can the worker and co-workers be required to wear masks when they leave their offices?
If an office is not involved, can the workstation be moved to a more remote location at the worksite? Can the person interact with his co-workers by e-mail, instant messaging, or phone? Can the job be done remotely? If not, can the worker transfer to a different job?
As with all reasonable accommodations, the employer is required to engage in the “interactive process” with the vulnerable employee, which means both parties should brainstorm about mutually acceptable accommodations that may be effective, Shea suggests.
As the EEOC concludes, “An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”
According to Shea, “This is classic ‘direct threat’ guidance, very consistent with the position that the EEOC has always taken. So, don’t be too quick to send those ‘vulnerable’ employees home unless they ask you to send them home.”