A lot of employers are struggling with all the unknowns of COVID-19.
How long will you need to take these precautions in the workplace? What do you do when an employee comes down with the virus? What are your legal obligations?
Employment lawyer David K. Fram of the National Employment Law Institute tells employers it doesn’t have to be as complicated as they think.
Handling it like the ADA
Fram says so many employers are worrying about COVID-specific questions and issues coming up, but they can handle it in the same way they handle ADA issues.
Whenever an employee comes to you with a medical or compliance concern, the best thing you can ask them is, “How can I help you?”
And that question is just as effective in this COVID-19 world, Fram says.
Just like when dealing with ADA accommodations and concerns, employers should focus on finding “quick, easy fixes” to COVID-19 issues, Fram says. It’s also crucial to document every step of the process.
While the basic strategy to addressing COVID-19 issues is the same as ADA concerns, there are obviously a few key differences.
Here are Fram’s answers to four common questions about COVID-19 and the ADA employers may have:
1. Is COVID-19 classified as a disability under the ADA?
There is no formal guidance on whether COVID-19 is a disability, Fram says. An ADA-qualifying disability must substantially limit a major life activity, and COVID-19 doesn’t always do this, as it doesn’t always present symptoms.
Things can get tricky, however, when an employee has an underlying condition, making them wary of coming into the workplace. In this case, you’ll need to first determine if their underlying condition is considered a disability.
As always, you can be more lenient than the laws require. If an employee is truly afraid of coming in and they have the ability to work remotely, you may just want to grant them that accommodation.
2. Is being on-site an essential function?
The pandemic has vastly changed many companies’ stances on remote work. In the past, working from home could be a reasonable accommodation for an ADA-qualifying disability. Now, Fram says, granting widespread remote work could be that “quick, easy fix.”
Things only become a concern when an employee isn’t able to perform an essential job function due to their work-from-home arrangement. If that’s the case, Fram says, you should document this and communicate it to the employee. Temporary leniency could be granted if necessary.
3. What happens if employees aren’t being careful enough regarding COVID-19 precautions?
It’s possible some employees may complain about co-workers not being careful enough in the workplace. Some may even refuse to be in the same area as certain colleagues.
Again, Fram suggests attempting to accommodate this, even if it’s not technically required by the law. Grant remote work if possible. Physically separate the employees having the conflict. Fram says something extreme like reassignment should be a last resort, as that could potentially constitute “undue hardship.”
4. Is a temperature check a ‘medical exam’?
Fram says yes, so you can’t go around checking job candidates’ temperatures before making offers.
However, you can check employees’ temperatures if it’s truly job-related and a business necessity. Fram notes it’s important to remember to keep employee temperatures confidential – as well as the identity of anyone with a positive COVID-19 test.