By Ali Tozier
We’ve all learned to adapt over the past several months as we’ve figured out how to work remotely and shift our daily routines to account for new schedules, safe practices, and social distancing. As employees make their way back to shared workspaces, there are several considerations employers should take into account before moving forward.
Effective safety measures
Perhaps most importantly, employers should have proper safety precautions in place before employees return to the workplace. This includes guidelines for social distancing (such as limited in-person meetings, opportunities to telework, and increased space between desks) and thorough cleaning and sanitization.
In the wake of COVID-19, employers are also able to make certain medical inquiries that would not typically be allowed under the Americans with Disabilities Act. This allows employers to screen employees by asking questions about current health and symptoms, and even check temperatures. It’s important to note – if employers are collecting this information, it should be treated as a private medical file, and employers may not disclose information about specific individuals when addressing the virus within the workplace.
Employee leaves of absence
Many employees are still prevented from returning to work full time, whether it be due to childcare, an underlying medical condition, or some other reason, even though many employers are calling their employees back to work. Under the Families First Coronavirus Response Act (FFCRA), private employers with less than 500 employees, and covered public sector employers, are required to provide up to two weeks or 80 hours of paid leave for certain qualifying reasons related to COVID-19. The Family Medical Leave Act has also been amended to allow for up to 12 weeks of leave (10 weeks paid) for eligible employees whose childcare options or schools are closed. We discuss the specifics of the FFCRA more in depth on our blog.
If an employee has exhausted his or her FFCRA leave, yet still objects to returning to the office, the employee must communicate with the employer. The employer and employee should discuss the reason why in-office work is limited or impossible, whether any form of remote work is possible, and the employee should provide supportive documentation when necessary. The employer must balance protecting the needs of the company with the needs of its individual employees, all while being consistent in its treatment of employees and remaining in compliance with the Americans with Disabilities Act.
Note that employees are not protected from a general fear of contracting the virus if they come back to work. Employers must take appropriate safety precautions and enforce those policies to ensure compliance. Also, employers must have policies and practices that prevent employees who have COVID-19 from being around others and spreading the virus. If an employee has a disability covered by the ADA and requests leave as an accommodation, the employer must engage in the interactive process with the employee and provide any reasonable accommodation that is not an undue hardship on the employer.
Offer alternative options when appropriate
Again, if you’re able to offer employees the option of continuing to work remotely, this can help provide a safer environment for those returning to the workplace. The Occupational Safety and Health Administration (OSHA) recommends that businesses consider utilizing telework when possible, and limiting the number of people in a workplace to best practice social distancing.
Ask before acting
Before you take any adverse actions against employees for any reason which could be related to COVID-19, it is best to consult an employment attorney who can walk you through steps that the law requires you take. It is always best to double check that you are making the right decision if you’re considering terminating someone’s employment, especially in these strange and unprecedented times. Our team is here to help if you need guidance moving forward.