I know that many organizations (and individuals) are anxious for a return to normal. Trust me, I am too. But with COVID-19 cases starting to spike again in many areas, I’m seeing a lot of questions about whether employees can and should return to the workplace. So, I thought it might be good to talk about it.
To help us understand the intricacies of this, I reached out to my friend and attorney Carrie Cherveny to see if she would offer us some insights. Carrie is senior vice president of strategic client solutions in HUB International’s risk services division. In her role, Carrie works closely with clients to identify compliance risks across the organization and develop responsive strategies that ensure compliance and further overall organization goals, including risk mitigation when it comes to various insurances such as health and welfare programs and employment practices liability.
If Carrie’s name sounds familiar, it’s because she has helped us before with COVID-19 information. Her comments on employer communications is worth a read. As always, please don’t forget that since Carrie is a lawyer, her comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.
Carrie, let’s start with the big question. Can organizations require (or mandate) that employees come back to the office?
[Cherveny] Yes. Employers are free to build and implement their workplace policies as they see fit. However, there are some important regulatory exceptions. Employers may be required to make adjustments or allowances for employees with medical conditions protected under the Family and Medical Leave Act (FMLA) and/or the Americans with Disabilities Act (ADA).
We’ve all heard of the FMLA and ADA. But we don’t have a lot of experience with them during a pandemic. As a refresher, how do these pieces of legislation work with COVID-19?
[Cherveny] Let’s start with FMLA. Like we talked about in the travel article in September, good-old-fashioned traditional FMLA for the serious health condition of a family member applies to employers with 50 or more employees in a 50-mile radius. ‘Traditional’ FMLA provides up to 12-weeks of job and health insurance protections but it is an unpaid program.
A few additional reminders about FMLA. The employee must have been employed for 12 months and at least 1,250 hours in the 12-month prior to the FMLA. If both criteria are met, the employer will likely provide an employee with a Certificate of Healthcare Provider for Employee Family Member’s Serious Health Condition. Once the employer receives the completed and sufficient certificate of health care provider it will be able to determine whether the employee is eligible for FMLA.
FMLA leave may be intermittent or continuous. It’s important to note that the FMLA is premised on the employee’s inability to work. An employee who is able to work but requests to do so from home because of an underlying medical condition won’t qualify for FMLA but may be eligible for a job accommodation under the ADA.
With the ADA, the Centers for Disease Control (CDC) has identified a number of conditions that can potentially put individuals at greater risk if they contract COVID-19. If the employee requests a change in the workplace because of an underlying medical condition outlined by the CDC, the employer is responsible for following the interactive process under ADA to determine if a reasonable accommodation can be made.
The employer can verify the employee’s disability and that the accommodation is needed because (1) the disability puts the employee at higher risk if they contract COVID-19; or (2) the employee’s disability would be exacerbated by COVID-19. Employees may have difficulty obtaining the necessary documentation to verify his/her disability because health care providers are overwhelmed by the COVID crisis.
The Equal Employment Opportunity Commission (EEOC) encourages employers to be flexible and look for other ways to confirm the information such as the record of a prescription used to treat the condition. Additionally, the EEOC encourages employers to provide employees with a temporary accommodation while waiting for documentation.
Employers and employees can consult the Job Accommodation Network (JAN) for specific ADA and COVID-19 questions and resources.
Speaking of accommodations, what about employees who might request remote work because they’re in a high-risk age category or they’re pregnant?
[Cherveny] Employees may ask for accommodations (i.e. allowances to work from home) in response to a high-risk household member (for example, age or medical condition), because the employee is age 65 or older, and/or because the employee is pregnant. Employers should note the following:
- The ADA requires an accommodation for the employees’ own qualifying medical condition – not the medical condition of a family member.
- The Age Discrimination in Employment Act (ADEA) does not require a workplace accommodation – the ADEA is designed to prohibit discrimination on the basis of age and it does not include an accommodation requirement or provision.
- The Pregnancy Discrimination Act (PDA) likewise does not require an employer to accommodate an employee because she is pregnant – however – employers should proceed with caution because in some cases pregnant employees may experience medical conditions or complications that qualify as a disability under the ADA.
The CDC addresses these populations and provides this very simple and straightforward guidance to employers: Protect employees at higher risk for severe illness through supportive policies and practices.
- Older adults and people of any age who have serious underlying medical conditions are at higher risk for severe illness from COVID-19.
- Support and encourage options to telework, if available.
- Consider offering vulnerable workers duties that minimize their contact with customers and other employees (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this.
- Offer flexible options such as telework to employees. This will eliminate the need for employees living in higher transmission areas to travel to workplaces in lower transmission areas and vice versa.
- Ensure that any other businesses and employers sharing the same workspace also follow this guidance.
Last question. This might sound a bit odd, but I know a couple of people who have made it very clear they are not “work from home” people and want to return to the office asap. Can employees refuse to work from home? And do companies have to accommodate their request?
[Cherveny] Just like the right to require work in the office, employers can likewise require employees to work from home. I have also come across a few employees are ‘requesting’ (demanding?) to return to the office. Employers do not have to re-open their doors to employees or customers if they choose not to (unless of course there is a legal obligation to do so).
It is certainly possible for an employee to request an accommodation under ADA to return to the office. But there some significant obstacles to this accommodation request.
- The employee would have to medically demonstrate why physically returning to office is a necessary or appropriate accommodation.
- Even if the employee can provide medical documentation regarding a return to the office, the employer does not have to choose the employee’s preferred accommodation – only the accommodation that will allow the employee to perform the essential functions of the job.
- If the employee does have a medical condition that requires them to work outside of the home and the business is otherwise closed, then there simply may not be any accommodation available to the employee.
I want to extend a huge thanks to Carrie for sharing here expertise. If you’re looking for additional resources, be sure to check out HUB International’s COVID-19 FAQ. This is a 200+ question FAQ updated each week to consolidate the ever-changing and updated regulatory information across all aspects of employment including employee relations, benefits, and health and safety.
Speaking of health and safety, there’s a part two to this conversation with Carrie and it has to do with COVID-19, workers’ compensation, and workplace safety. It will be coming out next Sunday, November 22, 2020. I think you will find it very interesting.
I feel pretty confident in saying none of us want to be in the middle of a pandemic. But if we’re trying to find some takeaways, it’s that we can use the administrative logic of the FMLA and ADA to help and support employees during this time.12