Consider the Circumstances: What to Expecting When You’re Expecting Employees to Return to Work and They RefuseAs states begin to ease COVID-19 restrictions and individuals start to determine their own levels of acceptable risk, employers face yet another set of issues related to getting employees back to work. After many of you quickly pivoted to remote work to comply with stay-at-home orders, you are now reverse-engineering solutions to a new problem: employees who cannot (or will not) return to the workplace.

The bad news: there is no one-size-fits-all solution to this problem. The good news: the EEOC has issued some guidance you can follow to keep employees safe, keep your business running, and, hopefully, limit your liability. Before considering this guidance, however, your first step in any of these situations is to determine why the employee refuses to return to on-site work. This is a fact-intensive analysis and must be done on a case-by-case basis. We will address four scenarios that are cropping up in our practice and will outline a general approach.

Scenario 1: An employee is medically compromised, or lives with an individual who is and doesn’t want to return to the workplace.

Your employee does not want to work on-site because he or she is medically compromised, or lives with someone who is medically compromised. Does the employee have a disability under the Americans with Disabilities Act (ADA)? If so, you cannot discriminate against the employee based on that disability. Not only that, but you have an affirmative obligation to consider what, if any, reasonable accommodations will allow the employee to continue to perform the job’s essential functions.

(1) Your first question is can we provide a reasonable accommodation that will allow the employee to safely return to on-site work? Here are some things you should consider:

    • What about the on-site work poses problems and what reasonable accommodations (other than remote work) may address those problems for this particular employee?
    • Consider the employee’s own request — while you are not obligated to honor this request, you must at least consider its feasibility and try to find an equally effective alternative if possible.
    • Can you get creative with physical changes in the office to address these issues? Can you
      • require/provide the employee with PPE (e.g., mask, gloves, face shield)?
      • require/provide workers who interact with the employee with PPE?
      • provide physical barriers (plexiglass, etc.) at the employee’s workstation?
      • reconfigure the employee’s workstation (e.g., move to an office with a door, a spot with less traffic, etc.)?
      • have the employee participate in meetings virtually (within the office) or in a bigger meeting space?
    • If physical changes will not work, can you adjust the employee’s schedule to reduce number of interactions at work?

(2)  your answer to number (1) is NO (i.e., there is no way to accommodate the employee on site), can the employee perform all of his or her essential functions remotely?  During the shutdown, many companies permitted employees to work remotely just to keep people on payroll. In this instance, you can consider whether remote work actually works for this job or for your business.

    • If remote work is a workable option, you can temporarily approve work from home as a reasonable accommodation for this employee’s disability. Put a time limit on it and require periodic updates based on the employee’s health, performance, and CDC guidance.
    • If remote work is not a great option, consider whether the employee can work remotely part of the day/week, with short, intervals on site for some duties.
    • With either option, be up front that this is a temporary approval and is subject to change, with the ultimate goal that the employee is back on site full-time.

(3) If your answer to number (2) is also NO, consider leave (paid or unpaid) as a reasonable accommodation.

    • Can the employee take paid time off based on your company policy?
    • Is the employee eligible for FMLA leave?
    • Are there short-term disability benefits that might be available?

Keep in mind, if unpaid leave goes on for an extended period of time, it may be beneficial for the employee to consider termination or a temporary furlough so he or she can seek unemployment benefits.

Scenario 2: An employee is over 65 and does not want to return to on-site work.

While age is not a disability under the ADA, there may be older employees whose doctors provide medical reasons for refusals to return to work that disclose a disability. If this is the case, refer to the questions and guidance in Scenario 1 above.

Notwithstanding the above, you should approach concern from an employee over 65 in the same manner you would an employee with a disability. The current CDC guidance clearly states that individuals who are 65 years or older — regardless of underlying health conditions — are high risk for severe illness from COVID-19. You should not assume an older worker doesn’t want to return to on-site work but if they raise this concern, work with the employee to determine if there are accommodations you can make that will allow them to return to work safely. (Be sure to not assume the concern is disability-related and do not request any unnecessary medical information.)

The questions to answer in Scenario 2 are the same as those listed above in Scenario 1. Like with the ADA, here you do not have to give the employee the requested accommodation but you still need to engage in the interactive process with the employee.

You could get questions from younger workers who are not in the CDC high risk group about why they can’t work from home like these older workers. Under the federal Age Discrimination in Employment Act, there is no reverse age discrimination claim (i.e., I am not being treated as well as older comparators). However, rather than simply telling a younger worker it is none of their business (which is often tempting but rarely well received), engage in the same interactive process with the employee, considering all factors (including the CDC guidance on high risk groups) and make a separate determination about remote work.

Scenario 3: The employee is scared and does not want to return to on-site work.

Although fear of the coronavirus is not yet considered a disability under the ADA (unless the employee provides medical information that indicates he or she is being treated for anxiety, etc.), our default should not be to terminate an employee who says he or she is scared to return to work.  Instead, let’s find out why they are afraid and try to address their fears and concerns.

Go through the analysis in Scenario 1 — but this is to be a good employer, not because you have to provide the accommodation.  If there are physical changes to the work environment that limit exposure, etc., offer them. If the employee still refuses to return to on-site work, consider remote work if you want to. You may skip that option and go straight to leave (paid or unpaid depending on your policies).

Disciplinary action should be a last resort. Although you do not have to pay them if they refuse to come to work, you also don’t want to be “that company” that fired someone who was afraid to come to work during the pandemic. Leave the employee on unpaid leave. Document your offers of accommodation and let the employee know you may need to hire someone to do the job if they don’t return.

Scenario 4: The employee simply prefers to work from home.

This scenario should be handled just like any other request to work from home. Given the uncertainty and fear we are all facing during these unprecedented times, it is probably best to give employees a longer-than-usual on-ramp to return to on-site operations.  If employees refuse even after this, you should apply your attendance policy as you would under any other circumstance. Again, make clear that the job is on-site (not remote) and give the employee plenty of chances to return before terminating employment.

One caveat to this scenario is IF you have fewer than 500 employees AND the employee wants to work from home because usual childcare is unavailable because of COVID-19. Now you are in Families First Coronavirus Response Act (FFCRA) territory. Remember that employees have up to 12 weeks of paid leave (2/3 regular salary but capped at $200 per day) and this is available until the end of this year. If they can work remotely, they are not entitled to this leave. It is up to you to determine if they can effectively work remotely or if you want to provide the leave. If you find yourself in the FFCRA spot, check out our blogs here and here.

Conclusion

We recognize that these four scenarios by no means exhaust the list of employee circumstances you are going to face. We all know the crazy stuff that comes up in the employment world and the COVID-19 pandemic has made it crazier. However, these scenarios should serve as your starting place when planning for and dealing with the problem of employees who refuse or are reluctant to return to the workplace. Document your efforts and consider the circumstances.

Remember: there is no one-size-fits-all solution. (Sorry.)

Business Re-Entry – What Should Employers Be Considering Before Opening Their DoorsWe recently presented to the Nashville Area Chamber of Commerce via webinar on “Business Re-Entry – What Should Employers Be Considering Before Opening Doors?” The link to the webinar is below. In this webinar, we discussed developing a plan for re-opening, communication tips for employees regarding returning to work, and screening considerations for employees returning to work, as well as an update on the Paycheck Protection Program. Here are a few takeaways from the webinar:

  • Excluding employees of a certain age or high-risk employees from returning to work may cause issues under the Age Discrimination in Employment Act and the Americans with Disabilities Act. Employers cannot discriminate against employees on the basis of age. Under the ADA, before excluding a high-risk employee from returning to work, employers should determine whether there is a direct threat to the employee or others, and if so, whether that direct threat can be reasonably accommodated by allowing the employee to work at home.
  • The EEOC is permitting employers to take employees’ temperatures during the COVID-19 pandemic, but developing a policy on return to work/COVID-19, identifying symptoms that employees are prohibited from working with, and then trusting employees not to come to work with those symptoms may be a more practical approach.
  • When communicating with employees on returning to work, it is important to stay positive and make employees feel like they are returning to a safe work environment by explaining that employee safety is a top priority, explaining the workplace policy on trying to prevent the spread of COVID-19, explaining steps you have taken to protect employees, and explaining the screening policy.

Click the below .pdf version of this blog post to use as a reference guide as you’re developing your re-opening plans

Business Re-Entry – What Should Employers Be Considering Before Opening Their Doors

 

 

 

 

 

 

 

Download the PDF version of this presentation

Pandemic Planning: But What About the Other “P Word” in Your Re-opening Plans? (Hint: It’s Privacy)We are two months into the declaration of the COVID-19 pandemic, and a handful of states are starting to ease restrictions. With relaxation of the rules, employers are developing plans to re-open and bring employees back to the workplace. As this flurry of planning takes place, the focus (rightfully so) will be on keeping employees healthy, safe, and productive. What may not be getting as much focus right now is how to keep not just employees but their privacy safe as well.

You are likely thinking through plans to test, trace, and mitigate the spread of COVID-19 among your employees. This may include measures such as mandatory temperature checks, stricter sign-in/sign-out procedures, and even requiring employees to download apps that will track their movements throughout the day. While your intentions are good – for example if an employee tests positive, you can track exactly who else they came into contact within the days preceding the positive test – the results will include employers having responsibility for an enormous amount of personal data. Not only do employers have an obligation to keep employees safe, but they also have a legal obligation to properly handle this data too.

Is There an App for That and Should You Use It?

As with many business problems, lots of employers are looking to technology for a quick-fix solution. Some employers are considering electronic check-ins in which employees report that they feel fine or have begun exhibiting COVID-19 symptoms. The EEOC says such medical inquiries are acceptable (at least while COVID-19 poses a direct threat to health and safety) so the key will be to keep the collected information secure. Some employers are going a step further and considering apps that track an employee’s movements to help identify people who might have been exposed when someone tests positive. Whether you can require your employees to download an app to trace movements implicates all kinds of legal issues that are well beyond the scope of this post and will likely be addressed in legislation. If you can, here are some things we think you should consider.

First, employers should weigh the pros and cons of taking such a measure. The pros include enabling a much more detailed contact tracing of the virus if necessary. The cons include possibly risking employee privacy. Could you accomplish your goal with an old-fashioned sign in/sign out process? Do you need to track all employees or just some? Each employer will need to assess its particular situation.

Second, should you get employee consent rather than mandate tracking? Many states have passed laws that require an employer to get employees’ consent to track employee movements. Check to see if your state requires consent; even if it doesn’t, getting consent from employees is a good practice, just in case.

Third, you will need to consider if the device the employee is using is company-owned or personal. An employer has wide discretion to track activity on a company-owned device. Things get murkier on a personal device. If the personal device – for example a phone – is not used at all for work purposes, there is virtually no argument you can make for tracking employees using that device. If, however, you allow personal devices to be used for work, you may want to consider what is known as a Bring Your Own Device Policy (BYOD) that outlines what devices are being used, by whom, when, and where. With a BYOD in place, you can likely track employees’ activities outside of the office on personal devices, but that will depend on both your state’s law and getting the employees’ consent.

Finally, with all of these things in mind, you must consider the privacy aspects of the data you collect, whether in medical questionnaires or employee tracking. How will you ensure that employee data is securely stored? And what about medical information? Are you making sure any medical records are stored separately from individuals’ personnel files? Apps may seem like an “easy” fix to a hard problem, but they come with additional challenges that must be considered when creating re-opening policies.

Testing and Tracking

Many employers are opting for temperature checks as employees arrive to the workplace each day. Others are taking it a step further and planning for COVID-19 or anti-body testing of their full workforce. Regardless of your chosen testing and tracking plans, you need to be sure you are balancing the need to protect employees’ health and well-being with the need to implement effective testing and tracing that risks running afoul of not only employment discrimination laws, but data security laws too.

For example, imagine one of your employees tests positive for COVID-19. You send him or her home. Now what? You cannot disclose that person’s name (at least not without consent), but you want to be sure that you are protecting the safety and well-being of anybody that person has come into contact with in the past two weeks. This is where your contact-tracing plan kicks in. You need a way to effectively track the positive employee without disclosing their identity and while maintaining consistent security measures to protect the employee’s data. How are you storing that data? Where are you storing that data? What is your data retention policy for these types of records? Who has access to the data? Make sure you can answer all of these questions before implementing testing or tracking measures.

Additionally, you should be careful about treating that employee differently in the future because of the positive diagnosis. For example, after they have returned to the workplace with a clean bill of health, can you reassign them to a position that is less “social” or more “solitary” as a result of the prior positive test? On the flip side, given that they have already had the virus, can you treat them better than employees who have not tested positive? This would be tantamount to discrimination based on a medical condition. Is the fact that the person had COVID-19 a disability? Is the fact that someone has not had it a perceived disability? Do you want to be the company to test that theory in court or do you want to avoid such perceived discrimination?

If you aren’t convinced yet, it’s worth noting that even the federal government has begun to weigh in on how to protect the mountains of personal data being gathered in the process of fighting COVID-19. On April 30, Congress announced its plan to introduce a bill aimed at protecting consumer personal data. The bill will include measures requiring, for example, that companies receive affirmative opt-ins and allow individuals to opt-out of programs that collect, process, or transfer information regarding consumers’ personal health, geolocation, or proximity information. Additionally, the bill will require companies to delete or de-identify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency. Such measures, while aimed at protecting consumers, should be considered when dealing with employee data as well.

So, what now?

The bad news is that there is no silver bullet. The good news, however, is that there are proactive steps that you can start taking right now to create thorough re-opening plans that also protect employee data and privacy.

  • Encourage voluntary participation in contact-tracing programs. Rather than immediately mandating employees download an app (for example), pitch contact-tracing programs to employees as voluntary. Most of your workers are just as worried as you are about getting sick and, when given the chance, may gladly participate in programs to mitigate risks for themselves and their coworkers.
  • Build ownership over the plan you create. Rather than forcing a top-down approach, consider surveying your employees to determine what they are most worried about when coming back into the workplace. Perhaps their worries and yours are different – this might create an otherwise invisible opportunity to cultivate trust (while protecting physical health and data privacy to boot).
  • This is a time to over communicate with your employees. Make sure they understand the policies and procedures you have created before they come back to the workplace. Offer the ability for questions and answers, host a webinar, post videos, schedule trainings, send carrier pigeons – just make sure you are communicating early and often about what is expected.

At the risk of repeating every article online, these are unprecedented times. While it can be tempting to go back to “business as usual,” it will be up to employers to create a “new normal” that protects not just employees’ health, but also their privacy.