Return to the Workplace Part 3: Reasonable Accommodations and Leaves of Absence

Update

The Equal Employment Opportunity Commission (EEOC) updated its publication, titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to provide further guidance to employers regarding reasonable accommodation issues they may face as they plan for employees to return to the workplace.

Among other things, the EEOC explains in this guidance that the Americans with Disabilities Act (ADA) does not require that an employer accommodate an employee without a disability who seeks an accommodation to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition. Specifically, the EEOC states: “an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.” An employer is, or course, free to allow an employee to telework for this reason but is not required to under the ADA.

In addition, the EEOC has confirmed that, as noted below in this article, unlike the ADA, the Age Discrimination in Employment Act (ADEA) does not include a right to reasonable accommodation for older workers due to age. Therefore, even though the CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus, they are not entitled to an accommodation based solely upon their age. If an older employee also has a medical condition, however, an employer must engage in the interactive process to determine whether it will be required to provide a reasonable accommodation under the ADA and similar state and local disability laws.

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May 31, 2020

Employers planning to resume operations in the workplace after stay-at-home orders are lifted may find that some employees are reluctant to return. Employees may have medical concerns (about their own health or that of someone they live with), some may have child-care or other family-care issues, and some may simply be fearful. Before requiring that an employee return to the workplace, employers should consider whether they have any legal obligations to provide a reasonable accommodation under the Americans with Disabilities Act (“ADA”) or equivalent state and local laws. Employees may also be able to postpone their return if they are eligible for a leave of absence under the Families First Coronavirus Response Act (“FFCRA”), the Family and Medical Leave Act (“FMLA”) or state and local laws that provide employees with sick and family leave.

Federal, state, and local government agencies have published guidance to answer many of the questions employers are likely to face. For example, the Equal Employment Opportunity Commission (“EEOC”) issued “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The United States Department of Labor (“USDOL”) has issued “Families First Coronavirus Response Act: Questions and Answers” and “COVID-19 and the Family and Medical Leave Act: Questions and Answers.” These sources provide guidance for addressing the following situations employers may confront as they plan for employees to return to the workplace.

Am I required to allow an employee to continue working remotely if the employee is fearful about returning to the workplace because of COVID-19?

An employer is not required to allow an employee to continue working remotely merely because of the general anxiety we all may feel about returning to the workplace because of COVID-19, or a personal preference to continue to work remotely. The EEOC cautions, however, that some employees may have preexisting mental health conditions, such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, that may make it more difficult for those employees to return to the workplace.

How should an employer respond to employees who do not want to return because of medical concerns?

If an employee cites mental health or any other medical conditions as the reason for the request to continue working remotely, that must be treated as a request for a reasonable accommodation which requires the employer to engage in an “interactive process” with the employee.  

In its guidance, the EEOC explains that the interactive process is a discussion between the employer and the employee (with input from the employee’s health care provider), during which employers can (i) ask questions and request documentation to determine whether the condition is a disability as defined by applicable law; (ii) ask how the disability creates a limitation on the employee’s ability to perform the essential functions of the job; (iii) discuss what accommodations would assist the employee to enable the employee to keep working, and (iv) explore alternative accommodations (other than working remotely) that may effectively meet the employee’s needs without creating an undue hardship for the employer.

The EEOC advises that, even if important aspects of a job may only be performed at the workplace, there still may be temporary reasonable accommodations that meet an employee’s needs without causing an undue hardship to the employer. Given the constantly changing circumstances presented by the pandemic, the EEOC states that employers may “devise end dates for the accommodation to suit changing circumstances based on public health directives” or “provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation.”

The EEOC suggests accommodations other than continued remote work which an employer may propose, including:

• using plexiglass or other barriers to minimize contact between individuals;
• temporary job restructuring of marginal job duties;
• temporary transfers to a different position; or
• modifying a work schedule or shift assignment to reduce exposure to others in the workplace or while commuting.

A leave of absence (paid or unpaid) may, under some circumstances, also be a reasonable accommodation.

The EEOC recommends the Job Accommodation Network (“JAN”) website as a resource for employers engaging in discussions about accommodations, which has materials specific to COVID-19 available at https://askjan.org/topics/COVID-19.cfm.

Like the “interactive process” required by the ADA, employers covered by the New York City Human Rights Law (“NYCHRL”) must engage in a “cooperative dialogue” with an employee who seeks an accommodation. Unlike the ADA, however, the NYCHRL requires employers to memorialize in writing whether any accommodation has been granted or denied and provide a copy of the document to the employee.

Where an employer is already aware that an employee has a medical condition that may place that employee at risk, the employer may begin the interactive process before stay-at-home orders are lifted. An employer should not, however, assume an employee who is reluctant to return to work has a medical condition. As the EEOC advises, “if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.”

Employers must be aware that an employee need not make a written request for an accommodation or even use the word “accommodation.” Whenever an employee cites a medical condition as the reason the employee does not want to return to the workplace, the employer has a legal obligation to discuss reasonable accommodations under federal, state, and local law.

Can I refuse to rehire older employees because the CDC has identified this age group as being at a higher risk of severe illness if they contract COVID-19?  

No. The EEOC has definitively stated in a webinar that the Age Discrimination in Employment Act (“ADEA”) “would not permit employers to bar older workers [those over 40] from the workplace, to require them to telework, or to place them on involuntary leave.” Conversely, employers are not obligated to grant requests to telework from employees solely on the basis of their age but must engage in the interactive process if the employee also refers to underlying medical conditions. A transcript of the webinar (which also addresses questions under the ADA) is available on the EEOC’s website.

Can I refuse to rehire employees who are currently pregnant or who have underlying medical conditions (e.g., asthma, diabetes, etc.)?

No. According the EEOC, even where an employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude employees – or take any other adverse action – solely because they have a disability that the CDC identifies as potentially placing them at “higher risk for severe illness” if they get COVID-19.

Under the ADA, the employer must first conduct a “direct threat analysis” to determine if an employee’s own health would be endangered by returning to the workplace, as well as “an individualized assessment” to figure out if there is a reasonable accommodation that would allow the employee to continue to work that does not present an “undue hardship” for the employer, such as telework, leave or reassigning the employee to a different position that allows the employee to minimize contact with others.

Does the COVID-19 pandemic alter the determination of whether a requested accommodation would be an “undue hardship” for the employer?

Possibly. As before the pandemic, an employer is not required to provide an accommodation if it would present an “undue hardship” for the employer, meaning a “significant difficulty or expense.” The EEOC has recognized that “[i]n some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.” The EEOC explains that while an employer cannot reject an accommodation simply because it costs money, “the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration” as is “the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).”

If an employee cannot immediately return to the workplace as soon as restrictions are lifted, do I have to provide the employee with a leave of absence?

In some cases, employers may have to provide a leave of absence, either under new laws enacted to address the COVID-19 pandemic or under preexisting laws, depending upon the circumstances of the employer and the employee.

For example, as previously reported here, the FFCRA (which only covers employers with less than 500 employees) provides up to two weeks (80 hours) of leave at full salary (up to a cap of $511 per day) if:

• an employee is subject to a government isolation order,
• the employee’s health care provider has advised the employee to self-quarantine, or
• the employee has COVID-19 symptoms.

Employees can also take paid leave at two-thirds of their regular salary (up to a cap of $200 per day), to care for family members who are subject to quarantine orders or children whose schools have closed. The FFCRA will remain in effect until December 31, 2020.

Unlike the COVID-19-related sick leave provided under New York law (see “Governor Andrew Cuomo Signs New York Paid Sick Leave Bill For Employees Quarantined By Government Order as a Result of COVID-19”) an employee does not have to be under a government order of quarantine or isolation to be eligible for leave under the FFCRA.

An employee may also use leave under the FFCRA to get tested if the employee is experiencing symptoms of COVID-19. Under these circumstances, an employer may ask the employee “to identify his or her symptoms and a date for a test or doctor’s appointment.” The EEOC advises that an employer “may not, however, require the employee to provide further documentation or similar certification that he or she sought a diagnosis or treatment from a health care provider.” The reason for this prohibition is to encourage employees to get tested in order to slow the spread of the virus. (See Question 92 of Families First Coronavirus Response Act: Questions and Answers.)

Employers with more than 500 employees (who are not covered by the FFCRA) should remember that federal, state, and local laws in existence before the pandemic may require them to provide leave. For example, if the employee is prevented from returning to work because of a serious health condition, which would include COVID-19, the employee may be eligible for leave under the FMLA or similar state laws. As noted above, employees may also be eligible for unpaid leave as a reasonable accommodation under the ADA or state or local disability laws.

If an employee cannot return to work because of child-care or other family responsibilities, do I have to give the employee time to make other arrangements before they return to the workplace?

Whether and how much leave the employee must be given will depend upon the facts of each situation, such as why the employee must care for the child or family member, the size of the employer, and how long the employee has been employed. 

An employee covered by the FFCRA can take up to 12 weeks of partially paid job protected leave (the first 10 days of which are unpaid) if they are unable to work (including working remotely) because the employee’s child’s school or place of care has been closed, or the child-care provider is unavailable, due to a government-declared public health emergency related to COVID-19.

The US DOL explains in its guidance that, once schools are closed for summer break, (rather than closed because of COVID-19-related government closure) family and medical leave under the FFCRA is not available. Employees may still be eligible for leave under the FFCRA if the employee’s child’s care provider during the summer (e.g., a camp or other program) is closed or unavailable for a COVID-19-related reason.

State and local laws may also require employers to provide leave. For example, employees in New York City may use any of the up to 40 hours of paid sick time they can accrue under the New York City Earned Sick and Safe Time Act (“ESSTA”) when the employee must care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

Similarly, paid sick leave under the New Jersey Earned Sick Leave Act may be used when a child’s school or daycare is closed due to an epidemic or other public health emergency. In addition, the New Jersey Family Leave Act was amended in April 2020 to provide eligible employees with up to 12 weeks of unpaid leave in any 24-month period to care for a child whose school has been closed due to COVID-19.

In California, under Labor Code section 230.8, employees at worksites with 25 or more employees may be eligible for up to 40 hours of leave per year for school-related emergencies, such as the closure of a child’s school or daycare by civil authorities.

If the employee is caring for a child or family member who has a serious health condition (which would include COVID-19) the employee may be eligible for unpaid leave under the FMLA. In New York, if the employee is caring for a sick child or family member, the employee may use leave under the New York State Paid Family Leave Act. Leave to care for a child or family member with a serious health condition is also available under the New Jersey Family Leave Act and the California Family Rights Act.

Even if an employee is not eligible for any leave required by law, an employer may allow the employee to use accrued vacation or other paid time off in order to make other arrangements for the care of children or family members.

Next Steps

As part of planning to return to the workplace, employers should first decide whether all employees must return, or if it will be necessary to only require some employees to return. Analyze job duties, update job descriptions if necessary, and identify any essential job functions that cannot be done remotely.

It is also advisable to update leave policies to make sure they are in accordance with applicable laws, especially those that specifically address the COVID-19 pandemic, such as the FFCRA. Employers should make sure any new required notices are posted in the workplace, such as the FFCRA notice issued by the USDOL, available here. Employers should also examine their telework or remote work policies to address the current situation.

Finally, train supervisors and managers so that they know how and when to seek further guidance from Human Resources or legal counsel before responding to an employee who is reluctant to return to the workplace.

Please reach out to any of our attorneys if you have any questions or need assistance in determining how to respond to employees who are reluctant to return to work.