As COVID-19 restrictions wind down, employers are facing new questions regarding employees and return-to-work scenarios. It is a mixed offering with some employees ready and willing to return to the office while others are not; but let us cut right to the chase. Fears of COVID-19 do not shield an employee from returning to the office for work. In cases where an employee has medical concerns that could warrant accommodations in the workplace, employers are encouraged to give requests from the employee consideration.
Q: What if I have a medically compromised employee or the employee lives with someone who is medically compromised?
A: If the employee has a disability recognized under the Americans with Disabilities Act (ADA), an employer cannot discriminate against the employee based on the disability. The employer must consider reasonable accommodations (PPE, physical barriers, reconfigured workplace, virtual participation in meetings, etc.) to allow the employee to perform essential functions of the job. If there is no ADA disability, the employee will be asked to return to work. 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.
Q: What if an employee over the age of 65 does not want to return to on-site work?
A: While potentially at higher risk of COVID-19, according to the CDC, this is not considered a disability under ADA. Consider accommodations that will minimize concerns of returning to work. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based being age 65 or older, even if acting for benevolent reasons.
Q: What if an employee is fearful about returning to on-site work?
A: Unless the employee is currently being treated for anxiety or another potential disability recognized by ADA, fear of COVID-19 is not considered for accommodation.
Q: What if the employee prefers to work at home?
A: Handle this like any other work from home request. If attendance policies come into play, communicate if the position could be terminated if the employee refuses to return to on-site work.
Q: During a phased return-to-work scenario, can an employee give rise to claims of discrimination on basis of age, pregnancy and/or disability?
A: An employer cannot “protect” an employee in one of these groups.