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EEOC: Accommodating at-risk workers

As employers direct their remote staffs to return to the workplace, many are trying to maneuver through the individual needs of some of their at-risk employees. However, they’re not obligated to provide them accommodations unless they pose a direct threat, says the EEOC. 

In new pandemic-specific guidance, the EEOC reiterates an employer’s normal obligations for reasonable accommodations while imparting new measures they should take now.

‘Direct threat’ standard

First, employers need to understand the definition of a “direct threat” – the standard employers must meet in order to take any adverse action (reassignment, change of job duties, etc.) against employees who are at higher risk for the coronavirus.

COVID-19 screenings. Firms can take temperatures or make coronavirus-related inquiries before allowing staff to enter the workplace “because an individual with the virus will pose a direct threat to the health of others,” says the EEOC. 

But the process must be consistent for every employee. Employers must screen at-risk employees (age 65+, diabetics, those with asthma, etc.) the same as all other staffers. 

Since the ADA protects employees with disabilities, employers may not exclude a high-risk employee from the workplace or take any action against them unless their disability poses a direct threat to their health or the health of others, says the EEOC.

Direct threat assessment. Employers will need to conduct an individual assessment of an employee’s medical condition and their ability to perform their job, along with the severity of the pandemic in their geographical area.

Employers also need to assess if the threat can be eliminated by temporarily modifying a work schedule or reassigning them to a different job that allows remote work. Otherwise, that employee wouldn’t be considered a direct threat unless accommodating them poses undue hardship on the firm, says the EEOC.

Accommodation requests

If an at-risk employee requests an accommodation, the EEOC says a firm is allowed to discuss:

• how the disability creates a limitation 

• how an accommodation will enable them to continue performing their essential job functions, and

• whether another accommodation could solve the issue.

An employer can also request additional medical documentation if a particular accommodation isn’t reasonable. The EEOC recommends employers not only offer additional PPE (masks, gloves, etc.) and erect physical barriers, but be creative and flexible in offering accommodations.

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Risks to reopening: Crisis management in a post-COVID-19 world

It is an understatement to say “everything has changed” for
businesses.

While most companies had some kind of crisis management plan
in place, the global scale and uniquely disruptive nature of the coronavirus
pandemic has prompted a reexamination of what works, what doesn’t and the
changes required for businesses looking to reopen and companies looking to not
just survive, but thrive in a post-pandemic world.

It’s not just new policies, procedures and practices that need
to be conceived, codified, implemented and maintained. But also new
philosophies, perspectives and personnel considerations.

What follows is an overview of some of the new ways that companies need to be thinking about risk assessment and crisis planning, and some of the key considerations and best practices that companies can and should be taking right now to prepare for reentry and re-engagement in a post-COVID environment.

Locally and globally

Understanding the risk landscape going forward requires an
appreciation for the impact of the pandemic both locally on your community, and
globally—especially in ways that impact your supply chain, your partners, your
competitors and your customers. Navigating and accommodating what is already
turning out to be a range of different local, state and national
interpretations and recommendations/mandates will be tricky. Guidelines can
vary by industry and by the nature of the business within each industry. That process
begins with understanding the data and bringing in subject matter expertise to
interpret that data, benchmark it for your industry and your area and establish
trigger points and parameters.

Be tactical and practical

Once you have a better understanding of the new contours of
the COVID-altered risk landscape, the next step is to think about what tactical
controls you can implement to mitigate risk going forward. That includes basics
like how to embrace and enforce social distancing, ensure facility sanitation
and cleanliness and implement access controls, not just employees, but
suppliers, customers, contract workers and others.

It also includes the ability to secure and manage PPE, hand
sanitizer and other basics. In addition to ensuring that equipment and tech
infrastructure is available to support what is likely to be a more robust
work-from-home environment, addressing complex IT and information security
risks is also going to be a challenge.

Consider the complexities involved in a common precautionary
step that some have proposed: taking the temperature of anyone entering a
facility or workplace:

  • What qualified individual is going to take those
    temperatures?
  • What equipment will they use? How will they keep
    people separated while waiting to enter?
  • What legal or liability issues will this raise?
    How much will it cost?
  • Will that person be supplied with critical
    Personal Protective Equipment (PPE), and who is responsible for managing that
    process?

These normally very simple questions of access and practical
viability add expense and complexity to day to day operations.

Multidisciplinary approach

The way most companies think about risk mitigation and
crisis management has evolved—and will need to continue evolving. Environmental
health and safety are more valuable (and more essential) than ever. If that
isn’t already a significant component of your corporate security and safety
programming, that needs to change. Ensuring workplace sanitation and hygiene is
going to be critical to resuming operations.

Supporting the practical necessities of this new crisis management landscape will require a whole host of new policies and protocols that will need to be documented and clearly communicated. A company’s policies for what steps will be taken if an employee is exposed or falls ill need to be stipulated, and those guidelines must be fully compliant with any relevant local employment laws and HIPPA rules.

Will businesses implement travel restrictions? To what extent can/will they monitor individual employee behavior to protect the rest of the team? Figuring out what those policies entail is a process that can and should start today and will require multidisciplinary coordination between executive decision-makers, HR and facilities professionals, legal counsel, marketing and communications and corporate security

Decisions have to be made with guidance from those with specialized expertise in this space, but also with an organized, team approach. As companies build their “back to work task force,” they should strongly consider utilizing those members of their team who have already served as ad hoc crisis managers in the early stages of the pandemic. Leverage the experience of people that have had to go through this in real-time—and learn lessons along the way.

Policies vs. people

The current crisis has demonstrated more clearly than ever before that people are a company’s most essential asset. Going forward, thoughtful and prepared organizations need to invest in protecting that asset, especially with respect to their team members’ mental health and well-being. Make certain that HR, health and safety teams and security professionals have a plan in place to assess both employee health—mental and physical.

Those issues become even more urgent if there has been a tragedy on the team or if employees have lost friends or loved ones during the pandemic.

Clear communication to employees, professional partners and
other stakeholders about return-to-work plans and new health and safety
measures going forward will be essential. People want the peace of mind of
knowing their employer is providing a safe and clean workplace, and regular
updates on what steps companies are taking to keep the virus from spreading
within their facilities go a long way.

Finally, companies will have to be vigilant about a
potential spike in incidents of workplace violence. Unique stressors and a
period of high turnover will inevitably create more disgruntled and desperate
individuals. Operating with appropriate respect, dignity and professionalism at
all times can go a long way to mitigating the inflammatory impact of the
current environment.

Recognize the unknowns

The wholly unprecedented and largely unforeseen scope of the crisis has been a harsh wake-up-call for many businesses. In many cases, even those companies that thought ahead and had a crisis management process in place have found out the hard way that their business continuity plans are falling short.

While the best-prepared organizations have responded effectively and generally have been well prepared for a shift to remote workplaces and work-from-home operations, we are still in a dynamic environment. So much remains unknown—about the virus itself, and about the best way to safeguard against it. Data is changing not just from one week to the next, but sometimes from one day to the next.

Assumptions have changed. Priorities have changed. Companies need to reevaluate the way they look at risk. If you didn’t have a mature enterprise risk management practice in place, now is the time to remedy that. Because companies that truly understand the risk landscape in their market–how it is connected globally–will get a leg up on the competition.

And if a company can recover and get up and operating quickly, it can establish a distinct competitive advantage. Those that are agile, open and proactive, and are getting the right people, the right information and making the right moves to optimize safety, security and speed-to-market are likely to win the day. Customers and clients are going to turn to those who are prepared—and that preparation starts now.

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OSHA issues return to workplace guidance, includes 3 phases

It’s probably what many of you have been waiting for: OSHA has issued guidance, all in one document, on returning employees to the workplace safely. Here’s a quick overview from Safety News Alert.

OSHA recommends a 3-phase approach:

  • Phase 1: Make telework available when possible. Limit the number of people in the workplace to maintain strict social distancing. Accommodate workers at higher risk of severe illness, including those older than 60 or who have serious underlying health conditions. Extend accommodations to workers with household members at a higher risk of severe illness. Non-essential business travel should be limited.
  • Phase 2: Continue to make telework available where possible. Non-essential business travel can resume. Limitations on the number of people in the workplace can be eased. However, moderate to strict social distancing should continue. Continue to accommodate vulnerable workers as described in Phase 1.
  • Phase 3: Resume unrestricted staffing at work sites.

One major goal

OSHA says the goal is to prevent a resurgence of coronavirus cases. Such a resurgence could lead to increases in the number of sick employees, more contact tracing of people who visited a workplace, enhanced cleaning and disinfection, or even a temporary closure of the business.

When do you re-open? OSHA says reopening should coincide with lifting of stay-at-home or shelter-in-place orders and other specific requirements of the federal, state or local governments.

The recommendations include nine guiding principles:

  • Hazard assessment: Determine how employees might be exposed to the coronavirus.
  • Hygiene: Encourage hand washing, use of hand sanitizer and target high-traffic areas for enhanced cleaning and disinfecting.
  • Social distancing: Limit business occupancy, mark flooring for social distancing, post signs to remind workers to maintain six feet between one another.
  • Identification and isolation of sick employees: Ask employees to evaluate themselves for coronavirus symptoms and establish a protocol for managing people who become ill in the workplace.
  • Return to work after illness or exposure: Follow CDC guidance for discontinuing self-quarantine and ensure workers who’ve been exposed to someone with COVID-19 receive monitoring.
  • Controls: Use physical barriers/shields, increase ventilation, stagger work shifts, replace in-person meetings with video-conferencing, and ensure workers wear cloth face masks.
  • Workplace flexibilities: Consider new or revised policies on telework and sick leave, and let employees know the options available to them.
  • Training: Provide training about properly wearing cloth face masks in the workplace and all your policies and actions to prevent coronavirus infections.
  • Anti-retaliation: Ensure workers understand no adverse or retaliatory actions will be taken against them for raising workplace safety and health concerns, including those about the coronavirus.

The guide includes FAQs covering worksite testing and temperature checks.

Click here to access OSHA’s Guidance on Returning to Work document.

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4 steps to reinvent recruiting in the age of COVID

With COVID-19 keeping many campuses closed and air travel remaining at a near standstill, employers are uncertain about what will happen this fall recruiting season.

If things don’t quite go back to normal—which is looking increasingly likely—operating in the new landscape will require employers, students, and schools to explore unfamiliar options to prepare for any barriers.

Fall 2020 is
going to be the most atypical fall recruiting season early talent teams have
ever experienced.

A new approach to recruiting

Recruiting teams must
prepare a contingency plan that incorporates an entirely new fall recruiting
approach. With traditional solutions simply not cutting it, employers are
looking for an approach to recruiting that leverages interest from qualified
talent pools while enabling the same levels of engagement they typically achieve
with on-campus recruiting.

Employers need to adopt a strategy that responds to the plans and needs of students and higher ed institutions. As your early talent recruiting teams work through challenging questions around this year’s fall recruiting, here are four steps to help COVID-19-proof your fall recruiting playbook:

1.
Move beyond your core schools approach this fall recruiting season

The golden age of
on-campus events may be over, at least for now. Instead of reusing travel and
entertainment budgets to fly your team and company representatives out to your
partner schools, take this opportunity to reach the huge pool of qualified
talent online.

With more than
2,400 four-year colleges in the US, there are many qualified candidates in the
schools beyond your core list.

Many of those thousands
of college students and recent grads have the right backgrounds and skills to
match your talent profiles and become your future leaders.

In fact, they represent a more diverse pool of prospects than the students you typically engage with in your backyard or at your core schools.

2.
Proactively find candidates that match your talent profiles

Identify your
talent profiles first. If you’re hiring a product manager, for example, you’ll
want to look for talent with a business major and demonstrable skills including
project management and interpersonal communication.

Meanwhile, the coronavirus pandemic has forced us all to consider new ways of working. Thanks to available technology recent grads can use to both find and do their jobs from anywhere, you don’t have to sacrifice fit for location.

So, even with the
core recruiting model broken, you can leverage this opportunity to be even more
connected with talent—regardless of where they go to school or who they know.

3.
Shift your on-campus events to virtual events, info sessions, and panels

While there’s no surefire way to replicate visual cues exchanged in-person, you can cut costs this fall by replicating many components of in-person engagement with a digital experience to generate meaningful interest from early talent.

Virtual events
aren’t new—they’ve influenced employers like IBM to tap into candidates from underrepresented
backgrounds, and remain obvious choices in engaging the emerging
college talent generation, which grew up on technology, social media, and
mobile phones.

Now that the
coronavirus pandemic is forcing employers to go digital, however, virtual
events are a critical component of your recruiting toolkit. If you haven’t
hosted one already, we strongly advise you host one soon. The
novel coronavirus isn’t going to stop disrupting our personal and work lives anytime
soon and you absolutely must master these new recruiting tools and processes.

4.
Allow your employer brand to work for you

Employer branding has come a long way in the last few decades.

It used to be that potential candidates would know your organization’s brand reputation primarily through word-of-mouth.

Talent had to connect the dots to figure out what it might be like to work for you—researching your leadership team or examining your latest regulatory filings or advertising campaign, for example.

But nowadays, there are multiple digital tools available to help tell your company’s story. To do this well, companies need to build out your brand presence in multiple places—starting with our own websites, of course.

But you need to also be on verticalized job platforms where your target audience is looking for insight into your culture, benefits and compensation and other details about working for you.

Share your values

At its core, your employer brand is a reflection of your values. Whether you’re hiring early talent, pausing hiring, or engaging with candidates through project-based work, how you’re responding to hiring during COVID-19 will help define your employer brand.

Students are looking to prospective employers for support during this unprecedented and difficult time, so provide them with as much insight into your culture as you can.

Opportunity out of crisis

Whether you are
hiring during this fall recruiting season or waiting for more clarity, all
employers still have an opportunity to meaningfully influence – and attract – the
next generation of rising innovators.

The silver lining
here is that, for many organizations, early talent recruiting will be reaching
beyond geographical barriers and traditional target schools. Finding your next
generation of leaders is no longer constrained by geographic limitations or
limited to existing relationships.

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Reward your teams with these budget-friendly perks

Your employees know the advantages of working for a small
company or start-up – the feeling of being part of a friendly close-knit team
and less like a tiny cog in a huge machine. But do their friends’ tales of big
corporation benefits like the on-site fully-equipped gym and subsidized
restaurant, or free travel and expensive days out leave them feeling
short-changed? Your staff love working for a small company – that’s why they’re
there – but how do you retain top talent when there’s so much on offer
elsewhere?

There’s plenty you can offer your employees to keep them
happy and show them you care. You know the benefit of benefits – they’re good
for morale and a happy, engaged workforce is good for productivity which in
turn is good for business. Appealing perks also attract the best talent and
develop loyalty.

But what if you just can’t afford to give your employees the
perks they deserve? Fear not! There are plenty of wallet-friendly perks for
even the smallest of companies to show your staff your appreciation.

Flex
time

Give your employees some freedom by allowing them to set (to
a certain extent) their own hours. If you have people who struggle to get up in
the morning or just simply aren’t standard 9-5 people, let them start later and
finish later. Conversely, let the early-birds start earlier and finish earlier.
For total freedom, let them work their allotted hours whenever they like over
the week – as long as they get the work done, everyone’s happy. Some companies
have core hours where they need everyone to be working but allowing your team
to schedule around this will give them a greater work/life balance and feeling
of contentment. Although the whole point of flexi-time is to be flexible, you
will need systems to keep track of who’s doing what and where.

Remote working

The Covid-19 pandemic has certainly shone a light on remote
working and shown that not everyone needs to be in the office all of the time.
Today’s technology allows people to be totally connected so, if your employees
are mostly desk-based, there’s no reason why that desk shouldn’t be in their
own homes (or elsewhere, social-distancing permitting). As an added bonus,
fewer staff in the office using the electricity and facilities will bring down
your overheads, too. Just remember to take into consideration the remote
working pitfalls that can arise.

Paid
birthdays off

This is one of the simplest but most appreciated perks you
can offer your staff. No matter how much your employees love their jobs and
colleagues, they love being able to spend their birthday wherever and with
whomever they like even more. Knowing they’ll be able to have their birthday
off each year without worrying about handing in holiday forms only to find out
it clashes with a co-worker who wants the same day off and got in there first
(a consideration those who have birthdays at popular times such as Christmas
and school holidays, etc. will be all too familiar with) is a perk they will
adore.

Loyalty bonus

You may already offer an attractive holiday allowance, but
you can improve on this by offering extra days off for each year of service.
Additionally, you could offer month-long sabbaticals after a certain number of
years. Who wouldn’t be interested in a paid month off work?

4-day week

While not sustainable for every business, a
four-day week is a highly desirable perk for many workers. There are
different ways of implementing this: some companies have teams who all have the
same day off at the same time; other companies allow their staff to choose
their weekly day off and that remains consistent; while other companies allow
complete flexibility and allow their staff to swap their day off around,
depending on what commitments they have that week.

Food and more food

You may not be able to treat your staff to full meals each
day or even blow-out meal once a month, but you’re probably providing free tea
and coffee, so why not keep the kitchen stocked with fresh fruit, nuts
(assuming no one has a nut allergy of course!) and other healthy snacks to show
your appreciation? It won’t break the bank but they’ll go down really well with
your workforce. Another consideration that adds a nice touch to what you can
offer your staff is stocking dairy alternatives to milk such as soya, oat and
rice, to save those with dietary needs having to bring their own in each day –
they’ll appreciate being catered for and the money it’ll save them.

Relaxed dress code

If your team is usually suited and booted, just relax: let
them wear what they want. Allowing them to come to work casually will create a
more relaxed atmosphere, but this doesn’t mean productivity will suffer – quite
the opposite in fact. If your team is client- or public-facing, you may want to
retain a certain dress code or guidelines: no beachwear or rude slogans, for
example, but adopting a more relaxed policy – will create a happy workforce.

Bring your pet days

This is self-explanatory and you’ll have to check for allergies and phobias among your employees but allowing your employees to have their furry friends around will make most people happy. To be honest, this should probably be restricted to ‘bring your dog to work day’, unless you want total carnage in your office with dogs chasing cats around and cats eating the rats their colleagues have brought in. Allowing dogs in the office will cheer everyone up and, not only will the owners have their faithful friends with them all day, they’ll save money on dog walkers and careers.

These are just a few of the ways you can show your
appreciation to your staff and keep them loyal, even if you haven’t got the
cash to throw around like the mega-corporations do.

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Intermittent FMLA leave under FFCRA: When firms must allow or can deny

For many benefits pros, intermittent FMLA leave can be burdensome, but now it’s even more complex as to when to allow employees to take the incremental time off under the new Families First Coronavirus Response Act (FFCRA).

During the pandemic, the DOL is encouraging firms to be flexible in allowing employees who have children at home the intermittent time off. 

However, business needs (such as covering shifts and having staff available to respond to customers) can outweigh employee concerns.

“Employers need to carefully evaluate and balance many important competing interests,” said Marjory Robertson, senior counsel at Sun Life Financial.

Under the FFCRA, intermittent FMLA can be granted and taken in full-day increments, if the employer agrees, to an employee who is:

• teleworking, or

• physically at the workplace, but needs to care for a child whose school or place of care is closed or whose child care provider’s unavailable.

The FFCRA gives firms “significant leeway” to either approve or deny an intermittent schedule for a worker requesting leave, said Robertson. However, firms need to be consistent when denying leave and document the business reason for the denial to avoid any discrimination lawsuits.

For example, denying intermittent leave under FFCRA because an employee is nonexempt is reasonable because “exempt employees have more freedom to adapt their schedules to attend to personal needs,” said Robertson. 

FFCRA leave vs. FMLA leave

Intermittent leave under FFCRA would be more predictable than under FMLA, which is allowed when it’s necessary for a worker’s own health or a family member’s health condition. Under FFCRA, the reasons would most likely be known ahead of time and tend to be somewhat continuous, as in school or day care closures.

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Feds’ new guidance makes it easier to get PPP loans forgiven

Since the feds replenished the Paycheck Protection Program (PPP) in May, many more small employers have requested the forgivable coronavirus-relief loans. And now, the feds have issued a new round of guidance on what makes the loan forgivable. 

Forgiveness applications

On May 15, the Small Business Administration (SBA), which is administering the loans, released its 11-page loan forgiveness application.

Employers must fill out the application and submit it to the bank that approved their loans, along with documentation to verify payroll and nonpayroll costs.

The bank then issues a decision to SBA within 60 days. The loans can be forgiven if an employer: 

• follows the 75/25 rule, which is that 75% of the loan proceeds be used to cover payroll (up to $100,000 per employee) and expenses for paid sick leave, health care and other benefits

• uses the funds during an eight-week period, starting on the date of the loan

• maintains the same average number of full-time equivalent employees for the eight-week period of the loan, and

• doesn’t cut salaries of employees making under $100,000 by more than 25%.

For employers that received the loan, kept their employees and used 75% of the loan for payroll and benefits, loan forgiveness is fairly clear. However, it gets more complicated for those employers that haven’t been able to retain their employees. 

Forgiveness requirements

The SBA has released two new interim final rules addressing requirements for PPP loan forgiveness and for loan review procedures.

Here are some of the key guidance pointers from those rules:

Partial loan forgiveness: If a firm uses 60% of the loan for payroll and benefits and the rest for rent, they can still get forgiveness for most of the loan.

When workers refuse to return: An employer won’t be subject to a reduction in the amount of loan forgiveness for an employee who refuses to return. This is a common problem due to the additional $600 provided to those on unemployment under the CARES Act. But firms are required to alert state unemployment offices if someone refuses to return within 30 days of that rejection.

Bonuses and hazard pay: Employers are allowed to pay employees bonuses with the PPP funds, as long as their total pay during the eight-week period of the loan payout doesn’t go over $15,385. 

Alternative payroll period: Firms can use an “alternate covered period,” or an eight-week period that lines up with their payroll schedule. In other words, if the PPP funds come in June 17 and the next payroll is run June 21, then firms can start their eight-week period on June 21.

Deadline to rehire employees: Employers can restore forgiveness if they rehire employees and reverse reductions to salaries and wages for full-time equivalent employees by June 30, 2020.

More forgiveness?

There are multiple bills being considered in Congress that could essentially forgive more PPP loans. 

The House has passed a bill that would extend the loan forgiveness period to 24 weeks, change the 75/25 rule to 60/40 (aiming to encourage employers to keep more employees working), and push back the June 30 deadline to rehire workers. A separate Senate bill would do the same.

The Senate could also vote on a separate bill in the next few weeks that would double the loan forgiveness period to 16 weeks. 

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Firms need to review PTO policies, as days pile up

An increasing number (42%) of employers are making changes to their PTO, vacation and sick day policies, as employees are reluctant to take days off during the unstable times of the pandemic. 

As unused vacation days pile up, some employers (16%) are requiring employees to take time off to reduce the year-end build-up, according to a Willis Towers Watson survey.

‘Use it or lose it’ policies

The Insurance Market in Laurel, DE, is reminding workers of their “use it or lose it” policy, since it’s ruled out letting them carry over time.

But any policy needs to be clearly communicated to workers. In a recent court ruling, a California employer with a “use it or lose it” policy was forced to pay a laid-off employee for accrued vacation time. This is because the policy wasn’t in writing. 

The court identified other factors to help firms draft an airtight policy:

• Identify the rights and obligations of both employer and employee, as well as the consequences of failing to schedule time off. 

• Administer fairly, so it doesn’t result in one employee working many hours with minimal time off while another works fewer hours and takes more time off. 

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SCOTUS rules Title VII protects LGBTQ workers

After years of district and circuit courts debating whether sexual orientation is a protected class under Title VII of the Civil Rights Act, the Supreme Court finally ruled it is.

In a 6-3 landmark decision, SCOTUS decided that employees can’t be fired due to their sexual orientation or gender identity.

Defining ‘sex discrimination’

Since 1964, the Civil Rights Act has prohibited employers from firing employees due to their sex — but the law had said nothing about sexual orientation. Many lower courts ruled that firing someone for their sexual orientation isn’t the same as firing someone due to their sex.

But now SCOTUS has made its stance clear, with Justice Neil Gorsuch stating his opinion for the majority, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Gorsuch went on to say that “sex plays a necessary and undisguisable role” in firing a person due to their sexual orientation or gender identity, which is “exactly what Title VII forbids.”

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EEOC updates guidance as return-to-work accelerates

The Equal Employment Opportunity Commission on June 11 released updates to its document “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

The guidance, presented in a Q&A format, is especially critical as more businesses prepare to re-open facilities for the first time since state governments issued stay-at-home orders in March and April.

The June 11 guidance updates address Return to Work, Age, Caregiver/Family Responsibilities and Pregnancy questions that employers and employees may have as they adjust to no longer working from home.

Return-to-Work

Q. As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?

A. Yes.  Under the Americans with Disability Act (ADA) and the Rehabilitation Act, employers can provide information on how to request accommodation for a disability that workers may need upon return to the workplace, even if no date has been announced for their return.

You can begin the interactive process as soon as requests come in.

Your notice must include who to contact and can include all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19.

Explain clearly that you are willing to consider requests from any employee who has these or other medical conditions on a case-by-case basis. 

Make sure you specify if there are different contacts who will handle accommodation requests. For example, should employees with disabilities or pregnant workers call a different HR staffer or office than employees whose request is based on age or child-care responsibilities?

Make sure every contact understands the various federal employment nondiscrimination laws that may apply to accommodations due to a medical condition, a religious belief, pregnancy or other covered reasons.

Note: You can notify all of your workers or only those who are scheduled to return to work. Either approach is consistent with the Age Discrimination in Employment Act (ADEA), the ADA, and the May 29, 2020 CDC guidance .

Q. What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?

A. This is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act. 

Similarly, if an employee requests an alternative method of screening as a religious accommodation, you’ll need to determine if accommodation is available under Title VII.

Age considerations for return to work

Q. 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 and therefore has encouraged employers to offer maximum flexibilities to this group.  Do employees age 65 and over have protections under the federal employment discrimination laws?

A. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older.  As such, you cannot involuntarily exclude an employee from returning to the workplace only because they are 65 or older, even if you are doing so to protect the employee or for another benevolent reason.

Keep in mind that, unlike the ADA, the ADEA doesn’t require reasonable accommodation for older workers due to their age but you can voluntarily provide flexibility to workers age 65 and older, even if it results in younger workers ages 40-64 being treated less favorably. 

And, workers age 65 and older who have medical conditions protected as disabilities under the ADA can request reasonable accommodation for their disability as opposed to their age.

Caregivers/Family responsibilities

Q. If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations?

A. Just make sure you’re not treating employees differently based on sex or other EEO-protected characteristics.  Under Title VII of the Equal Rights Act, you can’t give female employees more favorable treatment than male employees, for example, because of a gender-based assumption about who may have caretaking responsibilities for children.

Pregnancy

Q. Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?

A. No. 

Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy.  Even if motivated by benevolent concern, you are not permitted to single out workers for adverse employment actions, including involuntary leave, layoff, or furlough, just because they are pregnant (or nursing). On the other hand, pregnant employees may be entitled to accommodation under ADA or Title VII.

Q. Is there a right to accommodation based on pregnancy during the pandemic?

A. There are two separate considerations here.

First, pregnancy-related medical conditions may be disabilities under the ADA, even though pregnancy itself is not.  If an employee who is scheduled to return to work requests reasonable accommodation due to a pregnancy-related medical condition, consider it under the usual ADA rules. 

 Second, under Title VII as amended by the Pregnancy Discrimination Act (PDA), women affected by pregnancy, childbirth, and related medical conditions may be entitled to any job modifications – including telework, changes to work schedules or assignments and leave – provided for other employees who are similar in their ability or inability to work.

While the circumstances created by this crisis make this even more complicated than usual, it’s critical that you make sure supervisors, managers, and human resources personnel know how to recognize and avoid disparate treatment in violation of Title VII.   

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