July 5, 2020

Volume X, Number 187

July 03, 2020

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Part Seven of the COVID-19 Roadmap Series: Employee Physical and Mental Well-being During the COVID-19 Pandemic

In Part Seven of our Roadmap Series, we take a closer look at the impact of COVID-19 on employee mental and physical well-being, and what employers can do to assist their workforce.

The Reality

It should come as no surprise to employers that the current COVID-19 pandemic has affected, and will continue to affect, the mental health and well-being of employees.  With companies hopeful that a “return to work” in some form will occur in the near future, now is the time for employers to educate themselves on this topic and prepare to the extent possible for any anticipated issues. 

The Statistics

According to an April 2020 poll conducted by the Kaiser Family Foundation, 45% of adults are reporting that anxiety and stress related to COVID-19 has had a negative impact on their mental health.  This figure is up from 32% when the same poll was conducted in early March 2020. Given the rapid rise within a month’s time, it is likely that this number will only continue to grow as many shelter-in-place orders remain in effect into mid- or late-May and perhaps beyond, and the timeline for reopening much of the country remains unknown.   

Remote Work and the Impact on Employee Health

While some employees worked remotely prior to the pandemic, full-time remote work has been a drastic change for the vast majority of workers.  For many, working remotely has meant isolation from co-workers, friends, and even family. 

Employers can take a number of steps to address these challenges and to assist employees with the “new normal” of home confinement and full-time telework, especially as some telework arrangements may remain in place even after stay-at-home orders are lifted. For example, employers should consider the following:

  • Stay connected by utilizing current technology to connect with employees in real time over the phone and (especially) through video for regular scheduled check-ins. This can include business-related check-ins or something less formal, such as grabbing coffee together over video or holding an informal video conference with a group of colleagues to catch up.

  • Train managers, supervisors, and/or human resources professionals to ensure that they are proactively identifying signs of employee distress, such as erratic work hours, lack of availability or responsiveness, or sudden and unexplained changes in work product.

  • Encourage employees to take time for self-care, both mental and physical, and to be open with their supervisors or managers about what challenges they may be facing.

Onsite Work and the Impact on Employee Health

Essential workers who have continued to work onsite during the pandemic, and employees that will be returning in the near future, will also bring their own mental health challenges. These will include not only anxieties about their safety at the workplace and while commuting to and from the workplace, but other issues, such as managing care for school-age children who are no longer in school and will not be attending camps this summer. 

Communication is key here as well, and frequent updates should be provided to employees with respect to safety and transparency.  For example, employers should advise employees as to:

  • Safety precautions the company is taking (e.g., the company providing personal protective equipment (“PPE”) such as gloves and masks, or distributing hand sanitizers);

  • Any increased cleaning efforts, especially pertaining to commonly used “touch points”;

  • Measures the company has taken to rearrange work spaces to account for social distancing;

  • Protocols the company has implemented regarding employees who show COVID-19 symptoms when at work;

  • Screenings the company is conducting for employees or third-parties entering the workspace, including temperature checks or other screenings; and

  • New policies on flexible or staggered schedules that promote commuting during less crowded times, or permit employees flexibility to accommodate childcare needs.

Employees will likely have other questions and concerns around what safety measures their employers are taking and what flexible work arrangements exist. As outlined in Part Two of our Roadmap Series, employers should designate specific personnel tasked with responding so that information remains consistent.  

Mental Health Resources for Employees

Now is also a good time to ensure your employees are aware of all available resources at their disposal.  This includes Employee Assistance Programs (“EAPs”), and any additional mental health services or support your company may offer.  If the company does not offer mental health resources, you can also help your employees by compiling a list of local mental health resources, including contact information. Continue to remind employees of the importance of self-care, taking time off when needed, and other resources to help deal with these stressful times.

Remember ADA Disability-Related Obligations & Accommodations

As indicated by the statistics discussed above, many employees are experiencing, or will experience, significant stress due to the COVID-19 pandemic.  For employees with pre-existing mental conditions (e.g., anxiety disorders, post-traumatic stress disorders, or obsessive-compulsive disorders), the impact of COVID-19 on mental health may be even more significant. 

Even when the workplace reopens (or if it has never closed), there will likely be employees that will not want to return due to concerns over exposure. Remember that a request to continue working remotely may be considered a reasonable accommodation for an individual with a qualified disability.  However, determining whether a psychiatric condition such as anxiety or depression constitutes a qualified disability under the Americans with Disabilities Act (“ADA”) is not always an easy determination.  

Under the ADA the term “disability” means, in part, a physical or mental impairment that substantially limits one or more of an individual’s major life activities.  In addition, mental impairments under the ADA include any mental or psychological disorder such as emotional or mental illnesses like major depression, or anxiety disorders.  But remember that mental traits or behaviors are not per se mental impairments.  For example, stress due to COVID-19 concerns, on its own, is not necessarily a mental impairment entitled to ADA protection.

If an employee with a qualified disability under the ADA requests a reasonable accommodation, such as working from home, in connection with a mental or psychological disorder, employers should engage in the interactive process as they normally would prior to the pandemic.  Employers may ask questions to determine whether the condition is a disability, discuss with employees how the requested accommodation would assist him or her and enable them to keep working, explore alternative accommodations that may effectively meet the employee’s needs, and request medical documentation if needed.  However, keep in mind it may be difficult for employees to obtain proof of their disability when access to healthcare providers remains restricted.  While these restrictions remain in place, a flexible approach is recommended in the event the employee cannot secure requested medical documents, and employers should still strive to find interim solutions that would permit the employee to continue working. As always, be mindful that the ADA requires all medical information about a particular employee to be stored separately from the employee’s personnel file, limiting information access only to those with a need to know.   

An employee may also request a reasonable accommodation based on a pre-existing physical disability that may place him or her at a higher risk for COVID exposure.  If the employee works in a role that may only be performed at the workplace, there may be reasonable accommodations that could offer protection.  For example, if an employee is requesting reduced contact with others, employers may consider one-way aisles in their workplace, the use of plexiglass or other barriers to ensure distance between individuals, or staggered/alternate shifts.   

In addition, if employers are requiring employees to wear PPE in the workplace, some employees may request modified protective gear as a reasonable accommodation.  This may include non-latex gloves, modified face masks, or gowns designed for individuals that utilize wheelchairs.  As with requests for accommodations in connection with mental or psychological impairments, employers must also engage in the interactive process for requests concerning PPE accommodations and provide the modification, or an alternative, if the accommodation is feasible and does not present an undue hardship to the company’s business.

Physical Well-Being Protections

Even if your company is located in a state with no definitive plans to reopen, now is the time to establish protocols for how you will adjust your workspace and protect employees’ physical well-being as they return to the office.  Depending on where your employees are located, state or local law may even require you to provide your employees with PPE such as masks or gloves if the employees are interacting with members of the public.

Aside from ensuring compliance with state and local law, providing PPE to your employees is likely to be regarded as a best practice, particularly where social distancing will be difficult. For example, consider providing all employees with masks and gloves and requiring that employees wear these items when entering and exiting the workplace, or when in communal spaces such as breakrooms or restrooms.  Also consider implementing guidelines around how many employees may be in a communal space at any given time. And, of course, post signs in prominent places reminding employees about good practices, such as frequent handwashing. Have hand sanitizer easily available, and adopt limits on the number of attendees at meetings and other gatherings.

In addition, employers should be evaluating the workspace to ascertain if changes can be made to the office layout to provide additional spacing between employees, or if employee shifts can be staggered so that less individuals are in the workplace at a given time.  

Remember that employers are permitted to implement and enforce these requirements to protect the health and safety of their workforce.  If employees refuse to comply and their refusal is not part of a request for a reasonable accommodation, or based upon a protected reason (e.g., religious reasons), employers have the right to take disciplinary action against employees.  

Additional information on ensuring workplace safety can be found in Part Three and Part Four of our Roadmap Series.

Parting Thoughts & More to Come

The systems that your company had in place prior to the pandemic may no longer be the best options for your workforce.  Now is the time to review current policies that may affect employees’ health and well-being to determine if revisions are necessary.  Adopt a fluid and flexible approach going forward that will allow the company to adjust policies as circumstances evolve.  Demonstrating to your workforce that employee well-being is top of mind is always a worthwhile endeavor.

Next in our Roadmap Series, we will address issues relating to potential wage and hour pitfalls for employees who will continue telecommuting, and those who will return to the office.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 133

TRENDING LEGAL ANALYSIS


About this Author

David Barmak, Employment Attorney, Executive Advisor, Mintz Law FIrm
Member / Chair Emeritus, ELB Practice

David is an experienced trial lawyer and trusted advisor to businesses and their executives with a focus on employment law and HR issues. He has litigated hundreds of cases in federal and state courts and arbitrations nationwide. David is devoted to helping clients accomplish their compliance, risk reduction, and employee relations objectives. David has written and lectured extensively on employment law, trial practice, and alternative dispute resolution, and is often quoted in the media.

As a trial lawyer, David has handled hundreds of cases...

202-585-3507
Jennifer Budoff Employment Lawyer Mintz Levin
Associate

Jennifer provides clients with representation and counsel on a broad range of employment matters. She has significant experience defending employers in discrimination, retaliation, harassment, and wrongful termination claims in state and federal court, including the representation of employers in actions before Administrative Agencies.

In addition, Jennifer has substantial experience counseling management and human resource professionals on a broad range of workplace issues. In this regard, she regularly advises clients on best practices to minimize the risk of litigation and exposure, including monitoring and advising on changing employment legislation, and providing training for managers and employees on sexual harassment and discrimination in the workplace.

Jennifer also conducts internal investigations related to employment misconduct issues, prepares and updates employment policies and handbooks, negotiates employment and severance agreements, and assists in reductions in force and the onboarding of new employees.

Prior to joining Mintz, Jennifer was senior counsel in the Washington, DC and New York offices of a large law firm where she practiced employment law, commercial litigation, and professional liability.

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