Return to Work Considerations – COVID and the ADA – Employment and HR

United States: Return to Work Considerations – COVID and the ADA

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Employers face tough challenges unprecedented in modern history. Even though many employees, especially in manufacturing, have returned to work after working from home during the COVID pandemic, the effects of the increased flexibility seen in the COVID era persist. Many employees have taken advantage of the benefits of working from home over the past two years, even if only part-time, and do not want to give up this benefit. In contrast, and especially as COVID restrictions ease, employers often want their workforce to return to work in a more consistent and routine manner. These tensions are further complicated by an extremely competitive labor market. Recruiting and retaining employees is a challenge in today’s environment. In this context, prudent employers will keep employment law considerations in mind when developing return-to-work and work-from-home policies.

Where should an employer look to determine what accommodations they should make for an employee who wishes to work from home, either due to a diagnosis of COVID and/or a condition that puts the employee at increased risk severe COVID? Early in the pandemic, local or state health ordinances answered these questions about COVID-related leave. As the pandemic continued, many of these local health orders were canceled or expired. As a result, employers are left without clear local guidelines. Where local requirements are of no assistance, employers should consult CDC guidelines for quarantine and isolation guidelines.

Additionally, employers should keep in mind that COVID may qualify as a “disability” depending on the symptoms and their severity. If an employee tests positive for COVID and exhibits symptoms that require absence from work longer than the CDC’s recommended quarantine period, employers should seek legal counsel to analyze whether the employee’s COVID diagnosis constitutes a disability under the ADA. If this constitutes a disability, then the employer is required to engage in the interactive process under the ADA with the employee to determine if a reasonable accommodation for the disability can be made. Leave can be an accommodation under the ADA, just like working from home, under certain circumstances and for certain roles.

Similarly, certain disabilities can increase the risk of severe COVID symptoms. In the event such an employee with a disability requests an accommodation related to this increased risk of COVID, the employer must process the request as it would process any request for accommodation under the ADA. As always, employers should consult a lawyer and check local requirements regarding COVID leave when considering accommodations for employees in these circumstances.

Employers have many competing and difficult considerations when determining a company’s return-to-work policy. While labor shortages, industry, and specific role considerations certainly play a part in these decisions, employers should keep in mind the additional requirements of the ADA. The ADA can play a role at the individual level and determine whether an employee can request time off, work from home, or is entitled to other accommodations related to a COVID diagnosis or high-risk factors.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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