The Next Normal: A Littler Insight on Returning to Work – Handling Concerns about Hesitant or “High-Risk” Employees

From www.Littler.com

(with permission)

By Emilie Hammerstein and Michelle Barrett Falconer on 

April 30, 2020

As jurisdictions across the country are gradually easing up on stringent business closures and similar restrictions, employers and workers are understandably eager to resume operations and reclaim some sense of “normalcy.” Yet employers that are open, or are preparing to reopen, may be confronted with a new dilemma:  employees who are hesitant to return to work.

Some workers may be reluctant—or even decline—to return to the workplace because of health conditions, concerns about a family member’s health, or childcare obligations. On the flip side, employers may question whether it is safe for certain employees to return. This article addresses the leave and accommodation aspects of these increasingly common but thorny scenarios.

What if employees are fearful of leaving their homes because they are considered to be among those with a higher risk of severe illness due to COVID-19? 

If an employee cannot work (either at the worksite or remotely) or is limited in their ability to work because of an underlying health condition, the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA), as well as similar state or local laws, likely protect the employee.  Therefore, if an employee requests to remain at home or refuses to return to work because of their condition, an employer should treat that request or refusal as a request for accommodation under the ADA and equivalent state or local laws.  Such a request triggers the employer’s obligation to engage the employee in the interactive process. 

When engaging in the interactive process, employers should be mindful that some orders and public health guidance related to returning employees to work may require that employees who are part of the “high-risk” population be afforded specific accommodation(s).1  By way of example, in Colorado, employers must “provide work accommodations to Vulnerable Individuals, who remain subject to Stay at Home advisement, prioritizing telecommuting, as Vulnerable Individuals shall not be compelled to go to work during the pendency of this pandemic emergency.”2  In Alaska, non-public-facing businesses are required to provide a “high-risk employee…an alternative workspace and/or special accommodations at the employee’s request to avoid contact with, and mitigate the risk of, the employee’s exposure to colleagues and others at the business.”3 

Prior to the COVID-19 pandemic, an employer could rely reasonably on the ability to seek documentation during the interactive process for disabilities that were not obvious.  During the pandemic, however, there may be limits on an employer’s ability to seek documentation or other information from a health care provider in order to verify an employee’s job-related restrictions and/or need for accommodation. Moreover, any request for documentation or information from health care providers may be delayed due to restricted access employees may have to health care providers during the pandemic. As a result, employers need to be flexible with regard to their expectations about, and engagement in, the interactive process. They also must keep up-to-date on any specific return to work requirements imposed by these orders and public health guidance that may change, which would impact an employer’s approach to the interactive process with employees.

Ultimately, if there are no reasonable accommodations that enable the employee to return to work and the employee cannot perform their essential job functions remotely, the employee may qualify for FMLA (or an equivalent state or local law) if they meet the law’s eligibility criteria and their condition is an FMLA-qualifying “serious health condition.” Assuming an employee meets the eligibility criteria, the employer must analyze on a case-by-case basis whether the employee has a “serious health condition” for which leave can be taken. Given potential limited access to a health care provider, an employer may also need to approach certification deadlines with more flexibility by allowing a longer period for submitting certification.

In addition, employees of businesses with fewer than 500 employees may also qualify for two workweeks of emergency paid sick leave (EPSL) under the Families First Coronavirus Response Act (FFCRA).4  Under the FFCRA, a health care provider must advise that the employee quarantine or self-isolate because they are particularly vulnerable to COVID-19, but no documentation from a health care provider can be required.  Rather, the employee must only affirm that a health care provider advised them to quarantine or self-isolate.  If an employee seeks EPSL for this reason, the employee is eligible to receive EPSL paid at 100% of the employee’s regular rate or the applicable minimum wage (whichever is higher), up to a cap of $511/day or $5,110 total.  Per IRS guidance, an employer will receive a dollar of tax credit toward its payroll tax obligation for every dollar it pays the employee in EPSL benefit. 

What if employees do not want to leave their homes because they live with or are in contact with family members who are considered to be among those with a higher risk of severe illness due to COVID-19? 

Under the ADA and applicable state and local disability laws, an employer’s obligation to reasonably accommodate an employee is limited to accommodating an employee whose own health condition limits their ability to perform the essential functions of their job.  There are, however, some laws that permit employees time off to care for a family member who is ill. 

More specifically, the FMLA and its state or local law equivalents provide employees with protected time off to care for certain family members who are ill or need health care-related treatment.  An employee’s eligibility for time off for a family member’s “serious health condition” must be evaluated on a case-by-case basis, just as must be done for the employee’s own condition. 

In addition, mandatory paid sick and safe time (PSST) laws also allow an employee protected time off from work to care for a family member.  During the COVID-19 pandemic, some enforcement agencies have indicated that they construe their respective PSST laws as permitting an employee to take PSST to care for a family member who has heightened vulnerability to COVID-19 (rather than actually being ill with COVID-19).  Further, a number of PSST laws that existed pre-COVID-19 include a protection for public health emergency (PHE) absences.  Because of the pandemic, some PSST laws have been interpreted to extend protection for a COVID-19 PHE absence and others have been amended to protect certain PHE absences.5 Likewise, a number of jurisdictions have enacted new emergency PHE laws or executive orders in response to COVID-19.  Though these laws vary as to scope and the ability to use other paid time off benefits toward an employer’s legal obligation, they all uniformly provide protection to an employee wishing to take time off to care for a family member.  Because of the unprecedented nature of these laws, it remains to be seen how broadly enforcement agencies will interpret “caring for a family member.”

In contrast to an employer’s ability to seek documentation of the need for reasonable accommodation or even FMLA and equivalent state and local law leaves in “normal” times, many PSST laws have always prohibited seeking documentation of the need for leave or limited the circumstances under which documentation can be requested.  Further, it is common for the new PHE laws to prohibit employers from requesting documentation substantiating an employee’s need for leave.

To the extent that an employee is not covered by FMLA (or state and local law equivalents), PSST and/or PHE laws, but wants to avoid the workplace out of a general fear of being exposed to the virus and potentially infecting a family member, such absences are not necessarily protected by more generally applicable laws.6  However, executive orders and/or the accompanying public health guidance issued may require more flexibility in this regard, as well.  For example, at least both Colorado and Montana require employers to provide accommodation to employees with household members who are more vulnerable to COVID-19.7  In addition, employers need to be mindful that any actions taken with respect to an employee who refuses to return to work for safety-related reasons not run afoul of any anti-retaliation statute.

Therefore, an employer should review the various laws providing protected time off to care for a family member and consult any applicable orders or public health guidance, which may indicate an obligation to accommodate or a preference for permitting telework where possible.  This exercise helps avoid any erroneous assumption that an employee need not be accommodated in their request to remain off work or to work from home because of their association with a family member who is at higher risk of COVID-19 infection.

What if employees state they cannot return because of childcare obligations?

Under the FFCRA, employees may be entitled to protected time off and pay because a child’s school or place of care is closed or their childcare provider is unavailable.  The FFCRA provides two forms of protection for this purpose.  First, an employee may be eligible for leave through EPSL.  Second, an employee may also be eligible for leave through the Emergency Family and Medical Leave Expansion Act (EFMLEA).  As discussed above, EPSL provides for up to two weeks of time off.  Unlike situations where EPSL is taken for the employee’s own health-related situation, EPSL taken to address childcare obligations is paid at two-thirds the employee’s regular rate or applicable minimum wage (whichever is higher), up to a cap of $200/day or $2,000 total.  In addition, the EFMLEA provides employees up to 12 workweeks of leave.  The first two weeks of leave are unpaid (unless the employee elects to use EPSL or other paid time off the employee may have available).  The last 10 weeks are paid at two-thirds the employee’s regular rate or applicable minimum wage (whichever is higher) up to a cap of $200/day or $10,000 total.8 

Similarly, a number of PSST and PHE laws protect an employee’s absence from work (and provide pay) because of the closure of a child’s school or place of care due to a public health emergency.  In addition, there are a few jurisdictions with “predictive scheduling” types of laws requiring an employer to engage in an interactive-process-like discussion with an employee about family care obligations and a flexible work schedule arrangement. This includes, for example, the Los Angeles Mayor’s COVID-19 Order pertaining to grocery, drug retail and food delivery workers9 and guidance issued by both New York City and Seattle, Washington regarding their predictable scheduling laws,10 as well as previously existing “family-friendly workplace” laws in Berkeley and San Francisco, California.  Finally, employers should consult orders and public health guidance to determine whether childcare obligations arising out of the COVID-19 pandemic will need to be accommodated.  Indeed, at least Colorado’s Safer at Home Executive Order requires such accommodation.11

Can an employer require employees who are at higher risk of severe illness due to COVID-19 to remain at home or otherwise prevent such employees from returning to work to protect them?

Excluding employees from the workplace based on a protected class, even if well intentioned and done to protect employees, is risky and may constitute unlawful discrimination.  The U.S. Supreme Court has determined that excluding employees from the workplace based upon a protected category is discriminatory, even if intended to protect employees. In United Automobile Workers v. Johnson Controls, 499 U.S. 187 (1991), the U.S. Supreme Court held that excluding women with childbearing capacity from lead-exposed jobs was discriminatory, even though the company’s policy was adopted to protect fetuses. In particular, the Court found that this policy or practice could not be justified as a bona fide occupational qualification (BFOQ). 

While the concept of BFOQ does not apply directly to disability discrimination claims, the logic applied in Johnson Controls may well extend to a disability discrimination situation.  More specifically, just because an employee with an underlying medical condition may be at higher risk of severe illness due to COVID-19 does not mean that the employee cannot perform the essential functions of their job or that they pose a direct threat to the health and safety of themselves or others.  As such, an employer that may merely wish to protect its vulnerable employees with certain underlying medical conditions (whom the ADA and other applicable disability laws likely protect) should not bar those employees from returning to the workplace or from resuming work outside their homes.  Of course, if an employee in a vulnerable category can work remotely, then an employer may offer telework as an option.  If such employees cannot work remotely and want to return to work, however, excluding those employees from work comes with substantial risk.12

In light of this risk, employers should consider whether an executive order or some other legal decree may prevent vulnerable employees from re-entering the workplace or from working outside of their homes during the COVID-19 pandemic.  If this is the case, careful legal analysis should be conducted to determine whether such order or decree has the effect of being enforced as a law and how that interacts with the ADA and applicable state or local disability laws, particularly if the employee is unable to telework.  Finally, though an employer may be tempted to request that employees reveal if they have an underlying condition placing them among those considered to be most vulnerable to COVID-19, the Equal Employment Opportunity Commission’s Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (“Pandemic Guidance”)13 states that required employee disclosures of a compromised immune system or chronic health condition that could make them more susceptible to complications are prohibited under the ADA.  Further, the EEOC’s COVID-19 questions and answers,14 as well as its Pandemic Guidance, limit employer inquiries to whether someone has COVID-19 symptoms or COVID-19 itself to assess whether the employee poses a direct threat.

Conclusion

Reintroducing employees back into the workplace will require employers to juggle multiple logistical, emotional, and legal concerns. Because COVID-19 will impact employment for the foreseeable future, it is anticipated many employees will be reluctant to return, even after states have approved reopening plans. Employers with questions about what accommodations and leaves must be provided to these employees should consult counsel. This is particularly important for employers operating in jurisdictions with state and local-level leave laws.

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This article only includes general information and IMS is not, by means of this article, rendering any tax, legal or other professional services. This communication should not be relied upon for any decision or action that may have an impact on your business. Prior to taking any action, you should be in contact with your advisor.