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Rule 9: Don’t Discriminate, Don’t Retaliate, and, If Plausible, Accommodate – Return to Work in the Time of COVID-19

Part 9 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

If the Rules of the Road: Return to Work in the Time of COVID-19 series has given you any takeaways, it should be that it pays to be prepared, to be safe, and to anticipate workplace issues before they arise. This means taking stock of what has happened in the past year and what challenges lie ahead. There is almost nothing the pandemic has not affected in our lives, or in business and the workplace and the challenges have been daunting. Challenges have included, coping with illness, the stressors of new work arraignments, the impact of physical distancing, adjusting to caregiving responsibilities at home, and simply grappling with the unknowns of the pandemic. In short, it’s been a challenging year. As we turn the corner into 2021, it’s apparent that employers will continue to need to manage their workforces with an understanding of the complexities that the pandemic has thrust upon employees’ lives. The following short statements serve as a quick reminder of what employers should and should not do when returning employees safely to the workplace. If the statements seem familiar (dare we say intuitive), it’s because they are. You have seen them before. These maxims apply with equal force to the workplace today as they did before the pandemic. With all the preoccupying challenges presented by the pandemic, however, we offer these important reminders.

Don’t Discriminate

Discrimination based on protected characteristics was illegal pre-pandemic, and it is certainly not lawful during the pandemic nor will it be afterwards. To avoid discrimination claims, employers must ensure they have legitimate, non-discriminatory business reasons for their actions – whether they be hiring, firing, promotions, compensation and benefits, and so forth. In practice, this means ensuring safety practices implemented during the pandemic do not exclude individuals from the workplace based on protected characteristics such as age or gender involuntarily. For example, as the EEOC has explicitly pointed out, creating a blanket policy requiring individuals 65 or older and pregnant women to work from home – while mandating that everyone else come into the office – would violate Title VII of the Civil Rights Act. This is true even if the employer’s motivation is well-intentioned (i.e., done to protect the employee’s health and well-being). When making personnel decisions for a return to the workplace, employers should ensure they are not dictating who must return and who cannot based on the employee’s membership in a particular classification (beware as well, of potential reverse discrimination claims).

Discrimination can also occur in the improper administration of leave or accommodation policies. Allowing employees with children to take caregiving leave while denying a leave request of an employee to take care of a bona fide mental health issue is one example of the many ways employers can inadvertently discriminate against employees. Employees will undoubtedly have different needs and life circumstances that will each require careful consideration during these unprecedented times. To avoid discrimination claims, employers should train their managers to recognize these issues and ensure that leave and accommodation requests are assessed individually and then granted or denied in a consistent manner.

Don’t Retaliate

Disciplining, terminating, or taking adverse employment action of any kind toward an employee for taking time off due to COVID-19 is a sure fire way to run afoul of the law. As Department of Labor Q&A’s make clear, employers subject to the Families First Coronavirus Response Act (FFCRA) can run into trouble by asking too many questions or requiring employees to provide excessive information regarding their need for COVID-19 based leave. As such, employers should proceed with caution when denying leave requests on such basis. While there is no prohibition on disciplining an employee who unlawfully takes leave based on misrepresentations, employers should ensure they do so only when it is clear that a misrepresentation was made.

Taking adverse employment action of any kind toward an employee for reporting workplace safety violations is also unlawful. This is no less true now than it was pre-pandemic. Various states and cities have created ways for employees to report workplace violations of COVID-19 safety protocols. Some have even gone a step further in their guidance and orders by including explicit language prohibiting retaliation against employees for disclosing information regarding COVID-19 safety violations. Accordingly, employers should proceed with caution when responding to any COVID-19 safety claims in the workplace and ensure they take employee concerns seriously. Making sure an organization has a COVID-19 safety coordinator (required by some states) that can address employees concerns should help mitigate issues that may arise before they become bigger problems.

If Plausible, Accommodate

Since the beginning of the pandemic, and certainly as weeks turned into months, we have been speaking to clients and advising them of the biggest sleeper issue to be wary of – the impending and inevitable mental health effects on employees and, more broadly, on the workplace.

In August, the Centers for Disease Control and Prevention (“CDC”) published a report detailing the impact the pandemic has had on the mental health of individuals and the findings are alarming. According to the CDC, around 41% of individuals surveyed reported at least one adverse mental or behavioral health condition, including depression, anxiety, and trauma- and stressor-related disorder (TRSD) related to the pandemic. With no clear end to the pandemic in sight, employers should plan for the need to address mental health issues that will likely continue to affect employees for many months to come.

The first step to addressing issues of mental health in the workplace is by building awareness and creating a compassionate workplace culture. Employers can offer additional support to their employees by ensuring benefit offerings include telehealth services, or by providing employees use of vacation and leave benefits. Even minor changes, such as checking in with individuals periodically or creating opportunities to interact outside of work can make a lasting impact on employee health and well-being. It is important to recognize that everyone has good days and bad days – and that everyone is coping as best they can. But now more than ever, just as we advised that culture comes through in a crisis, it is crucial to stay connected, engaged and to check in regularly with our people. We cannot and should not assume that no news is good news – it very well may be the opposite.

Employers should expect to see (if they have not already) an uptick in requests for reasonable accommodations under the ADA and, relatedly, leave requests under the FMLA, and their state law equivalents. This should serve as a reminder that employers need to conduct individualized-inquiries into the ability of the person to meet the specific requirements of their position, and to determine if the individual needs a reasonable accommodation (including leave or intermittent leave) to perform the essential functions of their job. Beyond the legal requirements, employers should strive to be accommodating of requests by employees that are particular to each individual’s unique circumstances. When possible, employers should strive to accommodate an employee’s needs to take time off to home school their children, address mental health issues, move to a new location, or work flexible hours to take care of basic needs and increased family responsibilities occasioned by the pandemic. These requests for accommodation should be treated by employers in the same manner as they would have otherwise pre-pandemic – consistently and on a case by case basis, and, in addition, remaining mindful of complexities and unprecedented circumstances that must be navigated today.

Takeaway

Above all, employers should ensure they have a plan in place to proactively address issues concerning discrimination, retaliation, and accommodations requests that will undoubtedly arise as employers embark on employees’ safe return to the workplace. By creating a thoughtful and well-supported return-to work plan and culture, employers can demonstrate legitimate reasons for their actions, promote goodwill with employees, and avoid costly litigation and reputational damage.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 301
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Ian Carleton Schaefer Employment Attorney, Epstein Becker,
Member

IAN CARLETON SCHAEFER is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green, and a member of the firm’s National Employment, Labor & Workforce Management Steering Committee. 

Recognized in The Best Lawyers in America©, The Legal 500 United Statesand the New York Metro...

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Eduardo Quiroga Law Clerk Epstein Becker Green
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EDUARDO J. QUIROGA* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. He will be focusing his practice on employment litigation and wage and hour, trade secret, and employee mobility issues.

Prior to joining Epstein Becker Green, Mr. Quiroga worked as a Paralegal in the New York City branch of a property services labor union, where, among other things, he communicated with various government agencies regarding claim dismissals, conducted investigations in connection with...

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