Bringing People Back: Part II

EDITOR’S NOTE: Many resorts are still grappling with issues related to welcoming their workforce back “home.” In the August issue of Resort Trades magazine, our award-winning journalist Phillip Perry spoke of ways to ensure the safety and health of employees returning after weeks of closures due to the Coronavirus.

One of the greatest challenges for resort management was convincing everyone it’s safe to come back to work. “Many people are still scared, and their fear is valid,” says Bill Hagaman, CEO and Managing Partner of Withum (withum.com). “The risk of the virus impacting someone at any moment continues to be very real.”

Perry spoke in the August article about ways in which employers are reassuring workers, such as remodeling work areas and establishing standard operating procedures for social distancing, taking temperatures, and staging gradual returns to normalcy.

Here, in Part II, Perry continues with additional considerations:

Avoiding discrimination

Employers need to avoid intentional or nonintentional discrimination in the pool of people returning to work. “When everyone is not recalled, some people are laid off,” says Gregg. “The demographics of the exceptions should be worked through.” There should be no pattern by age, disability, race or gender.

Particular care should be taken if someone in a managerial role is overheard saying the pandemic has created a golden opportunity to not bring back a “difficult” employee. “You have to take a step back and figure out why the employee is labeled difficult,” says Bob Gregg, co-chair of the Employment Practice Law Group at Boardman and Clark, LLC, Madison, WE (boardmanclark.com). “Is it because of poor performance, or because they have spoken up on protected matters concerning safety or employment?”

The law explicitly prohibits adverse actions against anyone who has taken time off as a direct result of the Covid-19 outbreak.

“Employers may be subject to retaliation claims when employees are terminated or otherwise subject to adverse employment actions after they have taken sick leave, a leave of absence under the Family and Medical Leave Act (FMLA), or under a Covid-19-specific law such as the Families First Coronavirus Response Act (FFCRA),”

says Vice Chair of the Employment, Labor & Workforce Management practice of Epstein, Becker Green in New York (ebglaw.com) Susan Gross Sholinsky.

Accommodating disabilities

The Americans With Disabilities Act (ADA) and equivalent state and local laws create an especially hazardous legal terrain. An employer should not deny a request to work from home if that arrangement would be a reasonable accommodation for a Covid-19 related disability. “There may be a charge that the employee should have been allowed to work remotely if that individual has a compromised immune system or a condition identified by the CDC as one that would make the employee more vulnerable to being sickened by Covid-19,” says Sholinsky.

Ironically, the prevalence of remote work arrangements in recent months may have weakened employers’ traditional legal defenses in this area.
“Given that employers allowed people to work from home for so long during the pandemic, it may be much more difficult to claim undue hardship as a basis for denying a request to do the same as an accommodation under the ADA,” says Gregg.

It may be wise now to record any inefficiencies that have arisen from recent work-from-home activity. “Waiting to document difficulties until after a request for continuing home-based work is made will seem like an after-the-fact justification,” says Gregg. “That carries much less weight with investigators or courts.”

The ADA legal coin has an obverse side. “Some employers may decide to keep people with underlying conditions, the at-risk folks, out of the office,” says Gregg. “The fear is that if they come back they will be more susceptible to catching the virus with a more serious result.”
Yet excluding at-risk people can be tricky. “Who is at risk?” poses Gregg.

“Anyone over the age of 60. So, the employer is tempted to say, ‘Older people cannot come back.’ Well, that means they cannot earn money and that can create an age discrimination issue.”

The decision to exclude people from a back to work program must be based on more than a stereotypical presumption, says Gregg. The ADA’s “direct threat standard” states that employers can exclude workers only when there is actual evidence that they pose direct threats to themselves or others—perhaps because they have told the employer they have an underlying condition or they have a relevant symptom.

The need for a direct threat extends to a requirement for a medical examination. “The employer cannot send someone to the doctor to validate that they are okay to come back to work, if that same requirement was not made for everyone else,” says Gregg. “There needs to be more than a perception of a disability to send a person to the doctor.”

Attorneys caution that pay equivalency is not a defense against discrimination in these cases. “Even if the salary would be the same, the individual made to stay at home may lose out on valuable perks of actually working at the office,” says Gregg. “These might include client contacts, important sales meetings, or just generally being ‘in the know.’ They might even miss out on promotions: If you are not seen, you are not considered. So if you pick and choose who stays home, you have to be careful about picking some people and not others.”

The above considerations apply to employers of all sizes: While the ADA only covers businesses with 15 or more workers, most states have similar laws for smaller organizations.

Worker complaints

As careful as an employer may be in designing a safe and effective back to work program, it’s likely that not everyone will be pleased.
“Employers should put mechanisms in place to deal with complaints about working conditions, including practices such as social distancing to ensure the safety of the work environment,” says Evans.

“Some employees may feel the employer has not gone far enough or has not enforced the rules appropriately. Employers need to be ready to make necessary changes and ensure there is no retaliation against people who file complaints. This is important from the standpoint of both employee relations and whistleblower laws.”

Managers and supervisors, too, should receive special training on the new workplace rules and how to respond if anyone complains about them or refuses to cooperate. A point person can help. “One way to minimize risks is to establish a reopening coordinator who understands all of the moving parts of a back to work program,” says Evans. “It’s good to have someone who makes sure people understand the rules and their responsibilities.”

Phillip M. Perry is an award-winning business journalist based in New York City. He covers management, employment law, finance and marketing for scores of business magazines.