Not The Same As It Ever Was: Employers Reopen To New Challenges and Obligations

As states, including Illinois, begin to slowly reopen their economies, businesses that can resume operations have asked furloughed, laid-off, or telecommuting employees to return to their jobs and workplaces. But workers and employers alike intuitively know that back to work does not mean back to normal in the age of COVID-19. Things won’t look the same, nor will colleagues be able to interact the same way with each other or with customers. Similarly, employers face new issues, challenges, and legal obligations that simply did not exist a few short months ago (that seem far longer).

Many, if not most, of these employment matters unsurprisingly relate to the health and safety of workers and their families. Some employees may have serious reservations about going back to work. Other employees may be unable to return due to caregiving obligations or a lack of child care because of ongoing coronavirus closures. Companies will need to respond to these concerns in a matter that is both compassionate, constructive, and consistent with the law.

Reluctance or Refusal to Return to Work Due to Health and Safety Concerns

For employees who work in close quarters with colleagues or the public, fears of contracting the virus are hardly unreasonable. That trepidation may not be sufficient, by itself, to allow an employee to refuse to return without risking their job as well as their unemployment benefits. However, if the employee’s apprehension is due to their employer's failure to take necessary or required steps for the protection of their workforce, that may justify their staying home and retaining benefits.

Reopening businesses must follow workplace safety guidelines from the Centers for Disease Control and Prevention as well as any applicable state and local guidelines, such as those from the Illinois Department of Public Health. This includes such steps as providing adequate hand-sanitation stations, masks and protective equipment, social distancing policies, reducing capacity, temperature checks, and other precautionary actions.

Generally, an employee does not have the right to refuse to work merely because of fear about a potentially unsafe condition in the workplace. Thus, a business that complies with all federal, state, and local COVID-19 safety measures and calls an employee back to their old job provides that employee with "suitable work." A worker who refuses "suitable work" will typically lose their eligibility for unemployment benefits. Additionally, guidance from the Department of Labor (DOL) Employment and Training Administration provides that a general fear of exposure to the virus isn't a good enough reason to refuse to work.

Reasonable Accommodations for COVID-19 Under the ADA

The Equal Employment Opportunity Commission (EEOC) has emphasized that companies need to remain cognizant of their ongoing responsibilities under the Americans With Disabilities Act during the pandemic. But the EEOC also understands that employers should heed local and federal guidance concerning the health and safety of their workforces.

To bring clarity to these potentially incongruent priorities, the EEOC has issued guidance on several ADA-related issues that intersect with the pandemic. This includes an employer’s obligation to make “reasonable accommodations” for individuals with disabilities. In the context of COVID-19, the need to offer reasonable accommodations does not necessarily pertain to workers who have or show symptoms of the virus. Instead, it involves employees who have disabilities that may put them at an elevated risk for infection.

For disabled employees who can only perform their jobs in the workplace, employers may need to make reasonable accommodations that provide increased protections. Many employers have already taken steps for their entire workforce that could constitute reasonable accommodations, such as designating one-way aisles or installing plexiglass or other barriers to ensure social distancing between customers and colleagues.

Additionally, according to the EEOC, "temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform the essential functions of the job safely while reducing exposure to others in the workplace or while commuting."

As to an employer’s obligation to make reasonable accommodations for COVID-19, the EEOC also advises:

• If it is not apparent or already known, an employer may ask questions or request medical documentation to determine whether the employee has a "disability" as defined by the ADA and to determine whether the employee's disability necessitates an accommodation. Possible questions can include:
  • how the disability creates a limitation;
  • how the requested accommodation will effectively address the limitation;
  • whether another form of accommodation could effectively address the issue; and
  • how a proposed accommodation will enable the employee to continue performing the "essential functions" of their position. 
• An employee who was already receiving a reasonable accommodation before the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. 
• Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. 
• In some instances, an accommodation that would not have posed an undue hardship before COVID-19 may raise one now.  The circumstances of the pandemic, such as a dramatic loss of revenue, can be relevant to whether a requested accommodation can be denied because it poses an undue hardship

Personal or Family Leave Rights Related to COVID-19

Two pieces of federal legislation passed in response to the pandemic provide new leave rights to workers that can preclude employers from terminating employees who legitimately exercise those rights.

The Families First Coronavirus Response Act (FFCRA) establishes a new type of approved and protected leave under the FMLA: public health emergency leave related to the COVID-19 pandemic. This expanded leave is available to employees who must take time off to care for their minor children because COVID-19 has closed their school, daycare center, or other child-care services. Employers covered under the act (generally, those with fewer than 500 employees) cannot retaliate against workers who legitimately exercise their right to this leave.

Similarly, the Emergency Paid Sick Leave Act (EPSLA) requires that covered employers provide all employees with up to 80 hours of paid sick leave for specific qualifying coronavirus-related reasons. As with the new FMLA leave provisions, the EPSLA became effective on April 2, 2020, and remains in effect through December 31 of this year.

Employees may take paid sick time if the employee is unable to work or telework due to a need for leave because:

• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
• A health care provider has advised the employee to self-quarantine due to concerns related to COVID-19.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for an individual who is subject to quarantine or isolation order or has been advised to self-quarantine due to the virus.
• The employee is caring for a son or daughter if their school or place of care has been closed, or the child care provider is unavailable due to COVID-19 precautions.
• The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Both the FFCRA and EPSLA are complicated and nuanced. Employers should consult with experienced employment counsel when faced with a leave request under either program.

Keeping You Safe and Informed

We know the COVID-19 pandemic is placing unprecedented strain on business owners and their workforce, no matter the size of their company or nature of their industry. The attorneys at Latimer LeVay Fyock are committed to providing our clients with the most accurate, up-to-date information about legislative and other developments related to the virus. In addition to providing frequent updates on our blog, we are available to answer any questions and address any concerns you may have. Please contact us to discuss your specific issues.