As businesses slowly begin reopening, employers are faced with the decision of who will be asked to return to the workplace and when.
As with most situations, employers should prepare a specific system or strategy for employee return. Consider a set of criteria that are objective and non-discriminatory, such as skill set, education, or tenure, and apply it with consistency to all employees. Employers may want to consider a voluntary call-back where they ask employees if they want to return first. This could provide support for an employer facing a discrimination claim from an employee that is not called to return to work.
In some industries, employers may perceive that it is in their business interest to continue to have employees work from home. However, if they let some employees work from home but not others, employers should be wary of employees claiming inconsistent application. To this end, employers should keep written documentation of employees’ performance from home.
Additionally, there may also be reasonable accommodations required by law for some employees defined as “vulnerable workers” depending on individual circumstances. The CDC defines “vulnerable workers” to include individuals over the age of 65 or those with underlying medical conditions, including lung disease, moderate to severe asthma, hypertension, and others. The CDC has provided the following guidance: “Vulnerable workers should be encouraged to self-identify, and employers should avoid making unnecessary medical inquiries. Employers should take particular care to reduce vulnerable workers’ risk of exposure to COVID-19, while making sure to be in compliance with relevant ADA and ADEA regulations.”
Reasonable accommodations could potentially be anything that reduces exposure to COVID-19, including social distancing/working from home, workplace hygiene, personal protective equipment, masks, and alternate schedules.
On May 5, the EEOC provided updated guidance regarding reasonable accommodations. It clarified that it remains the employee’s obligation to inform his/her employer of the need for an accommodation due to a medical condition. There are no magic words an employee must use to trigger this process. The employer may then ask questions or seek medical documentation to assess whether the employee has a disability under the ADA and if that disability can be reasonably accommodated. According to the EEOC, employers must be “as flexible as possible” in evaluating the reasonableness of each accommodation request.
The EEOC also explained that an employer cannot bar an employee from the workplace just because he or she is at a higher risk for severe illness if they get COVID-19. Although an employer can bar employees with COVID-19 symptoms because they present a direct threat to coworkers, the analysis is different when dealing with a “direct threat to self.” On May 7, the EEOC further clarified this position to rebut apparent misinterpretations of the May 5 guidance to specifically confirm that employers cannot bar employees from the workforce solely due to an underlying medical condition that puts the employee at risk. Employers may only bar an employee from the office if that employee’s disability poses a “direct threat” to his/her health that cannot otherwise be eliminated or reduced by accommodations.
Direct threat means that the individual has a disability that poses a “significant risk of substantial harm” to the employee’s own health. The “direct threat” requirement is a high standard. An assessment of direct threat must be individualized and based on reasonable medical judgment, duration of the risk, nature and severity of the potential harm, likelihood the potential harm will occur, and the imminence of the potential harm. Analysis of direct threat factors will necessarily include individualized considerations regarding the employment and the employee, including transportation and third-party site considerations. The EEOC does not specifically address whether the employer must consult a medical professional to make the assessment of direct threat, but it appears some medical review would be necessary. The EEOC does not address whether the employer may request medical documentation, like a doctor’s note, indicating an employee can return to work.
An employer is required to consider all possible reasonable accommodations that would eliminate or reduce the risk so it would be safe for the employee to return to the workplace. An employer can only exclude an employee from the workplace if this review supports the conclusion that the employee poses a significant risk of substantial harm to him or herself that cannot be reduced or eliminated by a reasonable accommodation.
The United States Department of Labor issued guidance on May 7 addressing various aspects of paid sick and family leave. In order for an employee to take sick leave under the Families First Coronavirus Response Act (“FFRCA”) due to COVID-19 symptoms, the employer may require the employee to identify symptoms and a date for a test or doctor’s appointment. An employer cannot require the employee to provide further documentation regarding diagnosis or treatment. At the present time, the FFRCA is effective through December 31, 2020.
Employers should begin preparing for the procedures for reopening now. Current employee accommodations should be reviewed, and supervisors/managers should be prepared to refer employees to a well-defined interactive process regarding additional accommodations. It is not possible to outline or predict all the challenges employers will face in reopening, but closely following the local, state, and federal rules and guidance can provide a good foundation for addressing issues early and having the best chance of weathering the next phase.
Resources:
For Federal Guidance Regarding COVID-19 and the ADA, Rehabilitation Act, and Other Equal Employment Opportunity Laws:
https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
May 5 and 7 Update:
For the Department of Labor’s May 7, 2020 Q&A:
https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
For Up to Date Information on Coronavirus Symptoms and Public Health Guidance:
https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html#cdc-chat-bot-open
