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This Too Shall Pass: and Then What? Part 2 - Legal Considerations for Return-to-Work Decision-Making
April 29, 2020
In our first piece in this returning to work series, we examined the logistical issues associated with returning employees to work. In this latest segment, we will address the legal considerations underpinning the return-to-work process.
1.         Mitigating Employment Discrimination Risks When Returning Employees to Work
  • If an employer decides to bring all employees back to work at the same time, the process will remove employment discrimination risks.
  • On the other hand, if only some employees will be brought back, employers will need to have a legitimate, non-discriminatory reason for choosing which employees to rehire or return to work. These reasons could include seniority (easy, but not always practicable), operation needs, or documented objective past performance issues.
  • Look at recall like a reverse layoff. Identify needed functions and skillsets, consider business, revenue, and operational limitations, then select individuals.
  • Consider the potential of a disparate impact in the actual recall decisions. By this, make sure the percentages of older, minority, and female employees you bring back roughly match the percentages of the workforce pre-pandemic.
  • Recall is not political cover for employers to make performance-based decisions it should have made months and months ago. Instead, selection of individuals for recall must be objective and documented (e.g., employee was in progressive discipline).
  • Don’t make recall decisions based on fear of COVID-19 susceptibility (e.g., pregnancy, age, history of illness, etc.).
2.         EEOC’s Guidance -- “Return to Work” Section Includes Important FAQs
The EEOC has provided some guidance to employers regarding what they can do legally as part of returning employees to work.
  • COVID-19 Screening is Permissible: Screening returning employees for COVID-19 is permissible under the ADA, which permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. This standard is met when it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Guidance from the CDC and public health authorities constitutes sufficient evidence of a direct threat, so as long as screening measures are consistent with this guidance, they are permissible under the ADA.
    • This may include taking temperatures, asking questions about symptoms, or requiring self-reporting of all employees entering the workplace.
    • Employers should be mindful of privacy concerns with regard to employees’ symptoms and/or diagnosis of COVID-19, including temperature logs and other medical information obtained from employees. Keep this information fully confidential.
    • Of course, employers also should not engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
  • Accommodations to PPE: Some employees who are required to wear PPE (i.e., masks, gloves, gowns) may ask for accommodations due to a need for modified protective gear. Employers must address accommodation requests on a case-by-case basis to determine if a workable accommodation can be provided to the employee without causing undue hardship on the operation of the employer’s business.
  • Accommodations for Medical Condition or Disability: If an employee requests an accommodation for a medical condition either at home or in the workplace, employers may still ask questions or request documentation to determine if the condition is a disability under the ADA as long as it is not obvious or already known.
  • Altering the Interactive Process for Accommodations: In light of the pandemic, employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” and temporarily grant the request. Employers may tailor the interactive process as needed, providing end dates for the accommodation, in order to address changing circumstances based on public health directives and a potential increase in short-term accommodation requests.
    • Employers also may provide a temporary requested accommodation, with a defined end-date, while waiting for receipt of medical documentation.
    • Employers must consider an extension request, especially if government restrictions are extended or if new ones are adopted.
    • Employers may initiate the “interactive process” by asking employees with disabilities to describe any accommodations they believe they may need when the workplace reopens.
  • Undue Hardship and Significant Difficulty in a COVID-19 World: An employer does not have to provide a reasonable accommodation if it poses an “undue hardship,” which means a “significant difficulty or expense.” Accommodations that would not have posed an undue hardship or significant difficulty/expense pre-pandemic may pose one now.
    • For example, it may be significantly more difficult to conduct a needs assessment or to acquire certain items currently, and delivery may be impacted, particularly for employees who are working from home. It also may be significantly more difficult to provide employees with temporary assignments, remove marginal functions, or readily hire temporary employees for specialized positions.
3.         Accommodation and Leave Requests and Analysis
  • Due to the pandemic, employers may see situations where employees do not want to come back to work, or may see an increase in accommodation requests. This may be particularly common with older employees, pregnant employees, employees with comorbidities, etc.
  • While employees generally do not have the right to refuse to return to work, the ADA and leave of absence laws (state, local, and Families First Coronavirus Response Act) may be implicated.
  • Engage in the interactive process to determine whether the employee has a disability covered by the ADA that would require a reasonable accommodation, and whether that accommodation can be provided without undue hardship or significant difficulty.
  • Follow current leave of absence laws to determine whether a leave of absence should be granted in a particular employee’s situation. For example, the FFCRA provides that an employee should be granted leave if [t]he employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.”
  • Protect yourself by asking for legal guidance before you make a final decision is you are unsure.
4.         Updating Policies to Address COVID-19 Related Issues
  • Employers should review and update their policies on leaves of absence, the interactive accommodations process, and other relevant policies, including leave under the FFCRA and state and local laws on paid sick leave that may have changed due to the pandemic.
  • Employers should implement a detailed policy addressing the appropriate protocol and response to employees who test positive for COVID-19. The policy should let employees know what measures will be taken to ensure employee health and safety.
  • Prior to returning to work, employers also should implement a policy regarding containment measures and social distancing compliance procedures, such as handwashing, temperature checks, face masks, interactions with vendors and deliveries, and physical contact with other employees. This policy should be provided to all employees.
  • Employers should review return-to-work policies, and should consider requiring a medical release before employees can return to work after exhibiting symptoms or testing positive for COVID-19.
5.         Confidentiality Concerns
  • The ADA requires employers keep all medical information confidential, including information related to symptoms of COVID-19 or a diagnosis of COVID-19, such as COVID-19 test results, temperature screening logs, and other medical information solicited from employees. Employers should limit this information to those who need to know the identity of an individual who is diagnosed with or exhibiting symptoms of COVID-19, and should ensure the employees understand that such information must be kept confidential. Employers should be especially careful that medical information is stored separately from personnel files and the importance of maintaining confidentiality of this information. Employers may disclose certain employee health information related to COVID-19 to the CDC and other health authorities. Employers also should review state-specific privacy laws, which may require the implementation of additional safeguards.
  • Develop a process for tracing contact of an employee who becomes COVID-19 positive, while balancing privacy concerns with safety concerns. If possible, obtain consent from the individual to communicate information to other employees. If consent cannot be obtained, employers still should promptly communicate general information without disclosing the identity of the individual.
If you have any questions or need information concerning return-to-work issues, please contact Kevin Carr or Eric Kinder.

Kevin and Eric will be hosting a webinar on this topic Friday, May 1 at 10:00am EDT. Register now!
Labor & Employment Law Kevin L. Carr
304.340.3877 Eric E. Kinder