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EACCNY Labor Post-Pandemic Series | Returning to Work During Covid-19: Managing Vulnerable Workers from a US and UK Perspective

With the help of our members, we are creating a Thought-Leadership series on the impact of COVID-19 on Labor & Employment from the perspective of both sides of the Atlantic. Today, we present Jill Kahn Marshall, Partner at Reavis Page Jump LLP in New Yorkand Matthew Kyle, Associate Director at Osborne Clarke in the UK, who will address “Returning to Work During Covid-19: Managing Vulnerable Workers from a US and UK Perspective.”  |

As offices reopen throughout the United States and Europe amidst an ongoing pandemic, employers must determine how to handle employee requests for health-related accommodations and how best to keep their workforce safe.  The United States, the United Kingdom and the European Union already have frameworks in place to protect vulnerable workers, and now employers must determine how these apply in light of the Covid-19 pandemic.

The United States and the Americans with Disabilities Act (ADA)

In the United States, the Americans with Disabilities Act (ADA)  requires covered employers to engage in an interactive process to provide reasonable accommodations for disabled employees, absent undue hardship to the employer.  In the midst of the Covid-19 pandemic, employers are receiving such requests from employees with underlying medical conditions which put them at higher risk from contracting Covid-19.  Due to the contagious nature of the virus, employees are also requesting accommodations where it is not they, but a family member with whom they reside, who is in a high risk category.

In response to these trends, the United States Equal Employment Opportunity Commission (EEOC), the federal government agency tasked with enforcing the ADA, has issued guidance to help employers handle these novel requests.  The EEOC guidance confirms that having an underlying medical condition which puts the employee at higher risk from Covid-19 does qualify as a disability for which the employer must consider reasonable accommodations, such as changes to the workspace or remote work to limit the employee’s exposure to others.  Although the Centers for Disease Control and Prevention (CDC) has stated individuals 65 and older are at greater risk of harm from the virus, falling within this age range alone does not trigger protections of the ADA.  The EEOC also clarifies that the ADA does not require accommodations for workers based on the underlying medical conditions of a relative.  Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.

Accommodating Workers with Mental Illness

In addition to creating risks for people with underlying physical conditions, the pandemic has also exacerbated the conditions of workers who grapple with mental illness.  While feeling stress related to the pandemic alone would not necessarily qualify as a disability under the ADA, a preexisting anxiety disorder triggered by the pandemic would.  Employers must work with employees to see whether together, they can find an accommodation that works for both parties.

The Undue Hardship Defense

During the pandemic, employers may still utilize the ADA’s “undue hardship” defense, in that they are not required to provide an accommodation if it would impose a “significant difficulty or expense” on the employer.  In recognition that many employers are facing economic hardship as a result of the pandemic, the EEOC has expanded the definition of “significant expense.”  The employer’s sudden loss of income due to the pandemic is now relevant, as is the discretionary funds available to the employer during this difficult period.  This change does not allow employers to reject any accommodation that costs additional money during the pandemic, but rather, employers must weigh the cost of accommodations against their budget, accounting for constraints caused by the pandemic.

Protecting the Workforce

U.S. employers must also consider the ADA when making decisions about employees who may have contracted Covid-19 or are at a higher risk from doing so.  The EEOC advises that in order to protect the workforce from Covid-19, employers may require employees returning to work submit health questionnaires, undergo temperature checks, or take Covid-19 viral tests as a condition for returning to the workplace.  (Employers’ legal obligations surrounding the use and dissemination of the medical information obtained raises a host of privacy issues of which employers must be mindful of as well.)   Employers are not, however, permitted to require antibody tests, as the CDC has stated not enough is known about the immunity conferred by the presence of antibodies to make decisions about who can return to work based on these test results.

Policies for Older Workers and Pregnant Workers

While employers can take precautions to prevent those potentially infected with Covid-19 from entering the workplace, they cannot institute blanket policies related to higher risk individuals, even if the goal is to protect those workers or the general workforce.  For example, employers cannot mandate that workers 65 years or older, or pregnant workers, each of whom have been identified as being at greater risk from the virus, work from home, while allowing workers in other categories to choose whether to come into the office.  Employers can, however give these high risk employees the choice of whether to come into the office, as long as it is ultimately the employee’s decision.

Vulnerable Employees in the United Kingdom and European Union

As employees return to work there will be a renewed focus on the differing requirements of individuals and what employers should be doing to ensure that their health is protected.  In this section we briefly consider the issues arising out of health and safety and employment legislation in the UK.  However, the same themes and broad duties will also be applicable across the European Union as they reflect the same statutory framework.

The UK government recognises two groups of vulnerable people – those who are clinically extremely vulnerable (such as those diagnosed with cancer or who have had organ transplants) and those who are clinically vulnerable (over 70, pregnant or with some underlying health condition).

At present the government guidance for both categories is the same, although this could change if transmission increases, the most likely change being the requirement for extremely clinically vulnerable to return to self-shielding.  Therefore both extremely vulnerable and clinically vulnerable persons can go to work as long as the workplace is Covid-secure, but should carry on working from home wherever possible.  Covid-secure is a catch all term to indicate that those in control of the workplace environment have taken reasonable steps to mitigate the risk of transmission.  However, as a community virus and with people travelling to work often on public transport, for vulnerable individuals concerned it may not provide sufficient reassurance.

Employers have a legal duty under the Health and Safety at Work Etc. Act 1974, to control risks to the health and safety of employees and others affected by its business as far as is reasonably practicable. The starting point is to consider the risk to those who are particularly vulnerable to Covid-19 and put reasonable controls in place to reduce that risk.  Like other material risks to health and safety, the risk of Covid-19 should be assessed in terms of the operation of your business, including issues such as interaction with other parties and the shared use of facilities and equipment.  It is likely that the control measures that this assessment produces such as social distancing, good hygiene, cleaning, ventilation and supervision, will be those also used to protect vulnerable employees.  Whilst there may be no expectation of additional controls for vulnerable persons it is even more critical that those existing controls are stringently applied.  Therefore thinking not just about the initial implementation of procedures, but how compliance will be monitored is essential.

Ensuring that vulnerable workers are protected requires the employer to fully understand their needs, and this can only be achieved through clear and regular communication.  Consideration should extend to those employees living with someone who is clinically extremely vulnerable, something which will not be apparent unless the right questions have been asked and with the appropriate sensitivity.

It is important to explain what will be done to make the workplace safe. By consulting and involving vulnerable people in the steps employers are taking to manage Covid-19 risks they can hear their ideas and make sure changes will work.

Working from home or taking unpaid leave is currently a better approach for vulnerable employees if they are unhappy about returning to work. Many vulnerable employees will also qualify as disabled for the purposes of the Equality Act 2010. This means they have the right to reasonable adjustments, which could potentially include staying at home (if they are still able to perform their role).

It is also unlawful to operate provisions, criteria or practices which would put disabled employees at a disadvantage compared with non-disabled employees, unless this is justified. A policy of requiring vulnerable people to return to work could potentially be indirectly discriminatory and require justification. It may be hard to justify requiring an unwilling vulnerable employee to come back to work if, for example, other employees could cover their role or the employer could recruit temporary cover.

Pregnant employees

Employers must assess and control the specific risks to pregnant employees. It may be possible to do this by taking extra precautions to enforce safe distancing in the workplace. The current guidance does not say that vulnerable employees can never be asked to work, and this includes pregnant employees. It is a matter for employers’ own risk assessment and whether they are confident that they can provide a safe workplace.

If employers cannot ensure safe working conditions, they may need to temporarily alter the pregnant employees’ working conditions or hours, provide suitable alternative work on the same terms and conditions or (as a last resort) suspend the employee on full pay. This right to be suspended on full pay does not apply to other vulnerable employees, and in practice means that pregnant employees are treated differently than other vulnerable people.

What if the employee has anxiety which impacts on their ability to return to work?

If employers require their return, they may not be fit and able to work and may be signed off sick as a result, which would entitle them to sick pay. Even if they are not signed off sick, employees with some long-term mental health conditions may be disabled for the purposes of the Equality Act and it may be a reasonable adjustment to allow them to stay at home. They will not, however, be entitled to pay unless they are on sick leave or working from home.

Whether in the United States, United Kingdom, or the rest of Europe, good communication and an inclusive mindset is key to a successful return to work plan during Covid-19.  Employers need to take individual circumstances into account and act reasonably in considering any requests to stay at home; applying a blanket rule requiring all employees to return will not only raise the risk of a discriminatory impact, but could also damage the relationship of trust and confidence between the employer and its employees.  These are unprecedented circumstances for all parties involved, and employers must remain vigilant as the interpretation of the relevant laws continue to evolve during this pandemic.

AUTHORS:

Jill Kahn Marshall, Partner at Reavis Page Jump LLP, New York

jmarshall@rpjlaw.com | +1 212 763 4145

Matthew Kyle, Associate Director at Osborne Clarke, UK

Matt.kyle@osborneclarke.com | +44 781 126 9090

Stay tuned for more on this series! We hope you enjoy these Thought-Leadership pieces written by our members.