CoAdvantage- Many employers have been trying their hardest to protect their workers during the COVID-19 pandemic. In many cases, that has meant taking special precautions when it comes to their employees with the most risk factors for COVID-19, such as older workers or those with pre-existing health conditions.
Some workers will request accommodation on their own behalf, and every request should be given serious consideration. The National Law Review writes, “Employers should conduct an individualized assessment of any employee’s request for accommodations and should engage in the interactive process to determine if a reasonable accommodation is possible.”
It is permissible to require supporting documentation like a letter from the doctor that explains the employee’s situation.
But you also have to consider requests from the other direction. In other words, an employer might automatically assign all older employees to work from home while everyone else resumes working in the office. That creates the risk of an age discrimination claim, even if it’s intended for the employees’ own good. “The problem is from an employment law perspective, if you tell a 65-plus employee that says, ‘I’m ready to work. I’m healthy. I’m fine.’ that they cannot come to work because they’re too old… that’s called age discrimination,” employment lawyer Jennifer Shaw told ABC.
The best protection is not to rely on demographics like age or health status as part of your COVID-19 safety plan. Instead, deploy work-from-home programs on an equal basis, screen employees and customers alike as they come in, keep everyone socially distanced, make sure if anyone is working in an enclosed indoor environment that there’s good ventilation, ensure everyone has PPE, and clean and sanitize everything regularly. You can also mandate regular testing, as long as you make the same requirements of everyone.
Then, when considering accommodation requests, you will also want to:
· Establish clear, consistent, standardized accommodation practices so that every request is treated the same. Make sure employees are aware of any changes or updates to the policy.
· Follow all applicable guidance from the Department of Labor, the Equal Employment Opportunity Commission, and the U.S. Centers for Disease Control.
· Remain compliant with all applicable regulations, including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), the Age Discrimination and Employment Act (ADEA), the National Labor Relations Act (NLRA), Occupational Safety and Health Act (OSHA), Family Medical Leave Act (FMLA) and Health Insurance Portability and Accountability Act (HIPAA).
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