As flooring retailers and contractors begin to reopen, they will need to determine which employees they will bring back to work. In deciding who will return, employers may want to protect who may be susceptible to the coronavirus, such as older employees, pregnant women, or individuals with pre-existing conditions, and not offer to bring back those employees. Such a decision, however, could expose the employer to charges of violating federal laws, including the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act, and Title VII of the Civil Rights, as well as state and local laws.
The Equal Employment Opportunity Commission (“EEOC”) has caution that employers may not discriminate against employees based on age or pre-existing conditions in deciding who can return to work, even though employers may have the safety of their workers in mind when making such decisions. In its most recent guidance, EEOC advised that employers violate the ADA if it excludes employees from working “solely because the worker has a disability that places him at a ‘higher risk for severe illness’” making him vulnerable to contracting COVID-19. Rather, the EEOC requires an employer to show it made an “individualize assessment based on a reasonable medical judgment” that the employee’s disability poses a “direct threat” to the employee’s health. In other words, an employer must justify the exclusion of each employee and not just rely on their vulnerability to the coronavirus.
To minimize the risks of discrimination claims, the flooring retailer and contractor should consider the following precautions.
- Adopt Neutral Criteria: The flooring retailer and contractor need to have a legitimate, non-discriminatory reason for choosing which employees to rehire or return to work. This could be on a seniority basis, a previously used criteria for bringing back employees, based on prior evaluations (if well documented), and similar objective criteria. If a business did not terminate or furlough its entire workforce, the same factors that were used to make the initial termination or furlough decisions should be used in rehiring. The flooring retailer and contractor may also need individuals who are cross-trained and have multiple skill sets needed to meet the “new reality” of how the flooring retailer and contractor will be operating post the COVID-19 crisis. The key is to have objective criteria that can be justified if challenged as discriminatory.
- Apply Consistently: Whatever criteria an employer adopts it must apply evenly and consistently. If the criteria used will result in a disproportionate impact on older, disabled, women or minority workers, it may lead to claims of discrimination.
- Check with Vulnerable Employees: Although an employer generally should not initiate questions under the ADA regarding an individual’s underlying health conditions, the current circumstances creates a “direct threat” to an employee’s health and safety and thus reasonable inquiries are permitted. The flooring retailer and contractor should discuss it concerns with vulnerable employees.
- Make Reasonable Accommodations: Under the ADA, you need to make reasonable accommodations. One option is to allow older workers or workers with pre-existing conditions to choose whether to continue to work from home, if possible. Another option could include limiting some workers’ contact with fellow employees or customers by changing certain work responsibilities or creating different shifts and hours for vulnerable employees. WFCA has previously published a detailed list of recommended steps that can be taken to minimize the risk that an employee or customer will be exposed to the coronavirus. You can access the overview and Learn more here. These steps can help in developing reasonable accommodations. The key is to discuss with the employee and offer a reasonable accommodation.
- Document the Precautions and Accommodations Made: Employers should document their decision-making process before deciding who will be invited to return to work to avoid claims asserting that they “made up” reasons after the fact to cover up a discrimination. It is key that the flooring retailer and contractor also document all the steps they have taken to avoid discriminating and to make reasonable accommodations. This would include all communications to and from employees, any responses to employees concerns or complaints, and similar actions taken to ensure the business has not discriminated against older employees, disabled employees, women, or minorities.
Taking these precautions can help reduce the risk of that the flooring retailer and contractor will be found to have discriminated in rehiring employees.
With the rapid pace at which laws, rules and orders are being issued, WFCA is working to keep members informed and updated regarding their opportunities and obligations during the COVID-19 crisis.
Notice: The information contained in this update is abridged from legislation, court decisions, and administrative rulings, and should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.