Entering 2021 brought with it the hope of many retailers and business owners nationwide that COVID-19 vaccines and plans for their expedited distribution would soon allow the retail world to “return to normal.” That has not proven to be the case.
Complications associated with vaccines, new COVID strains, and a less than stellar implementation of distribution have most retailers, particularly brick and mortar retailers, distressed about how to successfully resume work while abiding by their state and local government’s policies.
For all retailers, concerns about the health and safety of its labor force, and how best to get people back to work without liability, remain top of mind. Businesses, including retail operations, which cannot operate with employees “working from home,” have to face the challenges of a labor force that is apprehensive about coming back to work, as well as the legal requirements to accommodate employees with disabilities and handicaps. Below are the things retailers need to know to address these issues.
The Apprehensive Employee
Initially, it’s important to understand the distinction between an employee who is simply fearful about returning to work from those that have a legal “disability” under the Americans With Disabilities Act (ADA) that need to be accommodated. A generalized fear of contracting the virus, or concern about the possibility that a vulnerable family member might be at risk if they return to work, are not things that legally require an employer to provide an accommodation to the employee.
However, if an employee has a pre-existing mental illness or disorder, which is exacerbated by fears regarding the pandemic, they might actually be “disabled” under the ADA. The Equal Opportunity Commission has advised that employees with anxiety disorders, compulsive disorders, and post-traumatic stress disorders may have such conditions aggravated by the pandemic and, accordingly, require an accommodation. For these reasons, employers should be cautious about disciplining or terminating an employee who is reluctant to return due to a generalized fear without knowing more about why the employee is expressing concerns.
Additionally, an employee’s apprehension about returning to work might be based on their belief that the employer is not providing a safe work environment. The Occupational Safety and Health Administration’s (OSHA) “general duties” clause requires employers provide employees a workplace “free from recognized hazards likely to cause or are causing death or serious bodily injury.”
If an employee is unwilling to return because they believe the employer is not meeting its obligation to reasonably protect them from exposure or violating the law, the employee’s objection might be protected. Disciplining or terminating an employee under this circumstance could give rise to claims for unlawful retaliation under OSHA or under state whistleblower laws.
In all instances where an accommodation is not legally required, it is best practice to treat employees with a “soft hand,” and to talk to them about what is bothering them before making any decisions. Employers should be prepared to educate and train the employee accordingly on all of the measures taken to help protect their safety, including by developing a return-to-work protocol and policies in compliance with Center for Disease Control and Prevention recommendations and any state and local administrative requirements. The goal, of course, is to convince the employee that they should return and to avoid having to make tough disciplinary decisions which could lead to unnecessary litigation or a disgruntled workforce.
Employees with Disabilities
An employer’s obligation is different for employees who have issues returning to work because they have a disability. Under the ADA, employees are considered “disabled” if they have a “physical or mental impairment” that “substantially limits one or more major life activities,” have a “record” of such impairment or are “regarded” as having such impairments. While any disability must be considered, most COVID-19-related concerns arise from individuals with immune disorders, respiratory illnesses, heart conditions, as well as individuals seeking treatment for cancer.
If an employee is legally disabled, an employer is required to engage in an interactive process with the employee to determine what reasonable accommodation can be provided that would allow an employee to perform the essential functions of their job. In the retail setting where “working from home” is not an option, employers can consider other accommodations such as temporary job restructuring, temporary transfers to a different position, modifications of work schedules or any other accommodation that might reduce the employee’s risk of exposure through limiting interaction with co-workers or customers. These measures can be in addition to physical protections such as plexiglass barriers, social distancing, and face coverings.
The ADA does not require the employer to provide the exact accommodation being requested by the employee if an alternative, but reasonable, accommodation is available. Moreover, the ADA does not require an employer to provide an accommodation if it would pose an “undue hardship” on the employer from a “significant difficulty or expense.” However, in most instances, a financial burden on the employer, even a significant one, would not qualify for this exception as it is evaluated based on the employer’s overall resources. The larger your business, the less likely this exception would apply.
Furthermore, while age might place someone in the “vulnerable population” according to CDC guidance, a person’s age alone and their general increased risk of adverse effects from COVID-19 is not a disability legally requiring accommodation. Moreover, employers should be careful not to deny older workers the opportunity to work because the employer is worried about them contracting the virus; doing so might lead to claims of age discrimination.
Ultimately, the key to dealing with fearful employees and avoiding liability is communication. Talk to your employees to find out what is bothering them and provide accommodations if they have legitimate medical conditions. A little flexibility will go a long way to avoid labor claims and will demonstrate to your employees that you care about their wellbeing.
Joseph G. Santoro is an attorney and equity partner at Gunster law firm, where he is the chair of the labor and employment practice group.