A business owner hangs up an open sign with a protective mask.
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As states begin to relax their home stay orders and reopen unneeded businesses, employers navigate a minefield of unforeseen legal problems. There are many questions about how companies can safely and responsibly return to the physical workplace while complying with guidelines from state and local health officials. Some employers are even considering going back to the office at all.
For those preparing to get back to work in the coming months, here are three key legal issues that all employers should consider before opening their doors again.
Accommodation of employees at high risk
The Center for Disease Control and Prevention (CDC) lists those who are at higher risk for serious illness, including people over 65 and people of all ages with underlying illnesses. The health and safety of these groups of employees is an immediate challenge for companies looking to reopen their physical workspaces.
First and foremost, employers should agree with the safety concerns of these groups of workers. Any reasonable workplace precautions that will enable these workers to remain productive while minimizing the risk of infection, such as: B. Home-based arrangements should be weighed carefully without placing undue burden on the employer.
For workers with underlying medical conditions that increase the likelihood of complications from COVID-19, it would be well advised to treat these workers as a sheltered disability under the Americans with Disabilities Act of 1990 (ADA), which includes employers aged 15 or more Employee.
While there is no exhaustive list of the disabilities covered by ADA, the ADA defines a person with a disability as someone who “has a physical or mental impairment that severely limits one or more important life activities; has a record of such impairment; or is viewed as impaired. “Given the current environment and the CDC’s current guidance that people at high risk stay home and keep them at least 3 meters away from other people, it is difficult to argue that an employee with such an underlying medical condition was not excluded from“ primary life ” Activities.”
In addition, many jurisdictions have state and / or local laws that place even stricter requirements on employers when it comes to accommodation for the disabled. For example, the New York Administrative Code generally defines disability as “physical, medical, mental, or psychological impairment, or a history or record of such impairment,” and covers employers with at least 4 employees.
In general, if an employee with an underlying medical condition desires adequate workplace accommodation to reduce the risk of developing a serious illness, the employer should attempt to provide one for as long as the employee can continue to work without unduly burdening the employer.
It’s also important to note that ADA-insured employers cannot prohibit certain workers from returning to work just because they have an underlying illness, as it could constitute unlawful discrimination on the basis of disability, according to the EEOC. Rather, the employee must apply to the employer for reasonable accommodation before the interactive process can begin.
Employers should also avoid asking individual workers if they have an underlying medical condition in order to coordinate a safe return to work. In general, the ADA prohibits employers from asking their employees if they have a disability (however, employees can voluntarily disclose a disability to file a reasonable accommodation request). Instead, companies should be open and clear about how they can request accommodation because of illness.
Unfortunately, for older workers with no underlying health conditions, there are fewer workplace safeguards to minimize the risk of developing serious illness from COVID-19. The Employment Age Discrimination Act of 1967 provides federal anti-discrimination protection for workers over 40. However, this law does not require employers to make reasonable accommodation based on age. However, employers should be aware that older workers who are treated less favorably by their employer during the pandemic compared to other groups of workers may later lead to viable claims for discrimination.
In general, employers planning to reopen should take all reasonable steps to minimize the spread of the virus and protect the health of high-risk employees, including encouraging remote working, if possible, reconfiguring offices to accommodate social Maintain distancing and the use of masks and the provision of hand sanitizer to employees, including in accordance with instructions from the CDC and local health departments.
Finally, any accommodation that is at risk of marginalization of certain groups of workers – for example, placing clear plastic barriers around the desks of immunocompromised workers while other groups of workers do not – could also lead to an allegation of discrimination Workplace.
Working parents may require additional accommodation
With day-care centers and camps closed and the fate of schools largely in balance, a significant portion of the American workforce will not be able to return to the office even if states allow workplaces to reopen in the summer and fall months.
While federal law does not create a legal right for working parents to make reasonable accommodation based on parental status, working parent abuse is often a proxy for sex discrimination, which is illegal under Title VII of the Civil Rights Act of 1964 on the local Laws also provide anti-discrimination protection for employees based on marital and / or care status.
Rather than issuing a blanket letter stating that all employees will resume normal office hours as soon as state guidelines allow, employers should encourage working parents to request adequate housing if they need one. Once the employee does so, the employer can start a dialogue about how best to maintain productivity while agreeing to the employee’s parental obligations.
Examples of reasonable accommodation for workers with children can include continued remote work, changed working hours, extended deadlines, fixed breaks, etc.
In addition to providing shelter, employers need to be extra careful not to retaliate against those who apply for shelter or preferential treatment to workers without children, as this has been shown to suggest discrimination.
Be wary of Coronavirus Discrimination
It is a disturbing reality that discrimination against Asian Americans is increasing in the wake of the coronavirus. Businesses were the most common place where cases of discrimination based on coronavirus occurred, according to a report by the Stop AAPI Hate Reporting Center that officially launched in March.
Employers of all types must be clear on their return to work that discrimination of any kind, including dismissal, is punishable. Employers should also provide clear reporting measures to employees to safely raise complaints about discrimination and other forms of harassment in the workplace.
There is simply no place for discrimination in the workplace, not least amid a global pandemic. Employers who do not promptly eliminate racism against workers or customers of Asian origin can face liability in the civil court system. Even disguised comments or “jokes” about an employee’s race that may seem harmless at first glance but are genuinely coded as harassment can help a court to establish discrimination in the workplace.
It is understandable that companies are eager to get back to their normal workflows. However, for anyone returning to work during the pandemic, it is not “business as usual”. Employers of all types should carefully consider their legal obligations regarding the most vulnerable members of their workforce before resuming personal operations.
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