As employers transition to return to work and return to in-office work, there will be employees who will be fearful of a return to work due to the risk of contracting COVID-19 in the workplace. How do employers handle those requests?
The employee fears contracting COVID-19 but has no underlying special risk factors
For those employees that fear contracting COVID-19 but have no underlying special risk factors, employers are free to do whatever they believe is best. They can terminate employment if the employee refuses to return to work. They also can place the employee on job-protected or non-job-protected unpaid leave.
The employee who fears contracting COVID-19 and has a disabling medical condition placing him/her at high risk
For those employees that fear contracting COVID-19 and have underlying disabling medical conditions placing them at high risk, there are Americans with Disabilities Act (ADA) and state disability discrimination law concerns. The Equal Employment Opportunity Commission (EEOC) outlined accommodation options for employers:
- Changes to the work environment, such as designating one-way aisles or using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible;
- Temporary transfers to other roles with less contact with customers, clients, visitors, and/or other employees;
- Temporary transfers to shifts with less interaction with others;
- Re-assigning marginal job duties that are high-risk;
- Changing the work location to a desk or office with little contact with others;
- Telework; or
- Job-protected unpaid leave (if other accommodations do not exist).
Before making these temporary accommodations during the COVID-19 pandemic, employers can require certification by a healthcare provider of the underlying disability and the need to self-isolate because of that medical condition. Employers also can place an end date on the accommodation (such as the expiration of the current state or local stay-at-home or stay safe order ) and later revisit the end date as the situation changes. Employers that cannot safely accommodate a return to work and cannot facilitate telework should provide job-protected unpaid leave. Those employers should re-evaluate the leave at certain points in time and decide if the leave has become “indefinite,” such that continued accommodation in the form of job-protected leave is an undue burden. At present, there is no vaccine, and the COVID-19 pandemic is likely to last through 2020, job-protected medical leave until the pandemic is over may be an undue burden for many employers.
Accommodations do not need to be provided if they pose an undue hardship. What is an undue hardship during the pandemic may be different than what would have been a year ago. For example, it may be an undue hardship:
- To hire temporary workers to perform marginal functions;
- To acquire certain supplies necessary to the accommodation;
- To deliver items to teleworking employees who are self-isolating; or
- To accommodate anything that involves anything other than low-cost or no-cost, given reduced revenue.