Reimagining the World of Work Due to COVID-19

In the absence of adequate testing and other unknowns, employers will have to proceed cautiously and prepare to operate in a new “normal.” This will implicate both legal and logistical considerations.

Some Good News on Disability Discrimination Issues

Federal and state laws make it unlawful for employers to discriminate against disabled employees. The scope of disability discrimination laws is very broad and encompasses not only employees with disabling medical conditions, such as cancer, diabetes, or mental illness, but others as well. The laws define “disability” to include employees who have a disability history or are perceived as being disabled. That may include employees who have recovered from COVID-19 infection or those who appear unwell, whether they are infected or not.

Given the highly contagious nature of COVID-19, the Equal Employment Opportunity Commission (EEOC) has issued two guidance documents providing employers with methods to mitigate the risk posed by infected employees, whether they are symptomatic or not. These methods were unheard of prior to the pandemic. EEOC considers COVID-19 to be a direct threat to co-workers and the disability discrimination rules have been relaxed substantially, as follows:

• Employers may require a negative COVID-19 test from employees before returning to work. Employers must make sure the tests are accurate and reliable. They must be administered safely and in a non-discriminatory manner.
   
• Employers may require employees to take their temperature before work and report the results daily. 
   
• Employers may take their employees’ temperature when they arrive at work. Temperature logs must be kept separate from personnel records and information shared only on a need to know basis. 
   
• Employers may question employees about their health by posing questions about coughs, fever, body aches, or difficulty breathing.
   
• Employees who appear unwell may be sent home.
   
• Employees may be required to provide a fitness for duty certification from a physician as a condition for returning to work.
   
• Employees may be required to wear masks and gloves. Companies should make sure that a ready supply of masks, gloves, and hand disinfectant is available at work. Enhanced cleaning protocols will also be required to make sure elevators, restrooms, copiers, doorknobs and handles, and other high touch areas are safe to use.
   
• Employees may be required to work remotely or on schedules which enhance social distancing so the full complement of employees is not present at the same time.

Employers Are Still Required to Accommodate Disabled Employees

Many people exposed to COVID-19 will have relatively minor symptoms such as an uncomplicated flu-like illness. Others may become critically ill and require hospitalization or on-going care. Some may have permanent or long-lasting disabling conditions due to heart attacks, strokes, or respiratory impairment.

Employers must accommodate disabled employees, as well as job applicants, provided they can perform their essential job functions and the accommodation does not impose an “undue hardship” on the employer. Employers may not discriminate against employees who have had COVID-19 or suffered lingering effects from the disease, provided the employee is capable of performing his or her essential job functions with or without reasonable accommodation.

Determining the appropriate reasonable accommodation may be a difficult process fraught with potential traps for the unwary. Employers generally must not delve into the nature of an employee’s disability. Employers should not provide medical advice or opinions concerning employee impairments. Where the need for an accommodation is not obvious, the employer may request information from the employee or the employee’s medical provider sufficient to determine the disability is covered under the Americans with Disabilities Act (ADA) or analogous state law, as well as functional work limitations and recommended accommodations.

Keep in mind that the employer need not provide the specific accommodation requested by the employee. Employers must engage in an interactive process to determine what accommodation is appropriate under the circumstances. Further, attempting to avoid provision of a reasonable accommodation due to undue hardship is extremely difficult. Most employers, particularly larger companies, will be unable to establish an undue hardship defense within the meaning of the law.

Beware of Retaliation Under the ADA, Family & Medical Leave and Families First Coronavirus Response Act

It is unlawful for employers to retaliate against employees who exercise their rights under the ADA or similar state laws. Employers may not retaliate against employees who have been quarantined due to suspected or actual infection or taken a leave of absence due to COVID-19. Retaliation is not permitted against employees who have requested reasonable accommodation.

The federal Family and Medical Leave Act (the FMLA) precludes retaliation against employees who have taken a leave of absence under the FMLA because they have a serious health condition or a covered family member has a serious health condition. Multiple states have enacted their own paid family and medical leave laws, which also make retaliation unlawful. The recently enacted Families First Coronavirus Response Act makes unlawful any retaliation against employees who exercise rights to paid family and medical leave or emergency paid sick leave.

Age Discrimination and COVID-19

The federal Age Discrimination in Employment Act (the ADEA) and analogous state laws make it unlawful to discriminate against employees age 40 or over. Some state laws prohibit discrimination based on any age. As employees return to work or are hired anew, employers must take care not to discriminate against older employees and applicants. The CDC has stated that employees age 60 and over are at higher risk for severe complications from COVID-19. As such, these employees may be slower to return to work or need additional time working remotely as the pandemic recedes. Although the age and disability discrimination laws do not protect older or at-risk employees who are afraid to return to work, the CDC encourages employers to “[s]trongly consider special accommodations for personnel who are members of a vulnerable population.” Further, employers should be careful when determining which employees to call back to work. A preference for younger employees may be discriminatory even if intended to protect high-risk employees. Lay-offs and terminations concentrated on older employees may be perceived as discriminatory.

Pregnant Employees and COVID-19

Although pregnancy is not considered a disability under state and federal law, some pregnant women may have disabling conditions related to pregnancy. Employers generally must engage in an interactive process to accommodate such employees. Moreover, some pregnant women may be reluctant to return to the workplace in light of the unknown risks posed by COVID-19. Employers must decide how to manage these situations without running afoul of the law. For example, some states, including California and New York require employers to engage in an interactive process with pregnant women to permit the employee to perform her essential job functions.

Occupational Safety and Health Issues

The Occupational Safety and Health Administration issued a guidance on preparing workplaces for COVID-19. A link to the Agency’s Guidance is here.

Further, the Occupational Health and Safety Act (OSHA) regulations permit employees to refuse to work under hazardous conditions. The hazardous condition must be a real threat of death or serious injury and other conditions must be met. OSHA makes unlawful any retaliation against employees who have exercised their rights under that law. OSHA also has jurisdiction to enforce protections against whistleblower retaliation in connection with twenty different health and safety laws. This includes the Affordable Care Act, the Sarbanes-Oxley Act, the Consumer Financial Protection Act of 2010, the Clean Air Act, and the FDA Food Safety Modernization Act, among others. Employers should take care not to expose employees to conditions that may trigger an OSHA violation.

The National Labor Relations Act

The National Labor Relations Act (the NLRA) protects employees who engage in protected, concerted activity concerning the terms and conditions of their work. If two or more employees, whether unionized or not, raise issues about unsafe working conditions, they are protected under the NLRA. This means that employers may not discharge, demote, suspend, lock out, lay-off, refuse to recall from lay-off, demote, or discipline employees who engage in protected, concerted activity. Individual employee complaints are not protected under the NLRA. Employees who attempt to unionize also are protected from retaliation.

Logistical Challenges to Returning to Work

In addition to operating their business and satisfying customers, companies face the unprecedented challenge of severe disease outbreaks at work. Most businesses are unprepared for the logistical challenges which lie ahead, such as sourcing protective equipment, dealing with business travel, and monitoring employees for safety compliance. Employee training on social hygiene is essential. Other issues to be addressed include: limiting numbers of employees in work areas, lunchrooms, and restrooms; rearranging workspaces to provide for adequate social distancing, and ensuring employees do not share computers, phones or other equipment. Companies will need to communicate with landlords and property managers to ensure enhanced environmental cleaning and limits on the number of people using elevators and public areas at the same time. Companies should take things slowly and closely follow CDC and OSHA advice. Some businesses will be able to re-open sooner and with less risk; others may find the challenges daunting. Companies may need expert advice to develop and maintain a safe environment for their employees and customers until an effective treatment or vaccine is approved.

Update Policies to Reflect the New Normal

Given the unknowns around COVID-19, we expect many employees will continue working remotely for some time and the office work environment will be dramatically different. Employers must revise their policies to address expectations for remote work, business travel, health and safety management and compliance with paid Family & Medical Leave and emergency paid sick leave under the Families First Coronavirus Response Act.

Takeaways

We are in uncharted territory given the rapidly evolving health crisis. Arent Fox has created a multi-disciplinary Task Force to assist our clients. We are here to help you navigate this situation. We have issued multiple Alerts concerning COVID-19 which are available here. If you have any questions please contact Valerie Samuels or the Arent Fox professional who usually handles your matters.