Return-to-Work FAQs: How to Avoid Disability and Age Discrimination Claims

May 22, 2020Alerts

With 48 states beginning to reopen their economies amid the ongoing COVID-19 health crisis, employers face difficult decisions concerning which workers to bring back into the workplace. According to the Centers for Disease Control and Prevention (CDC), older adults and people of any age who have serious underlying medical conditions might be at a higher risk from the novel coronavirus. Employers should be concerned about how best to protect these vulnerable employees even after implementing the protective measures recommend by the CDC and state governments. Well-intentioned employers may be tempted to make return-to-work decisions based on perceived vulnerability, but be very careful when trying to implement precautionary measures that are not specifically (a) required by law, or (b) requested by employees.

Treating vulnerable employees differently from their peers—even for their own protection—can lead to hurt feelings and claims of discrimination under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). On May 7, 2020, the Equal Employment Opportunity Commission (EEOC) issued new guidance to clarify that an employer may only unilaterally implement measures to segregate vulnerable employees from others in extremely narrow circumstances, even when those measures are intended to protect the employees' health. The guidance was issued under the ADA, but similar logic could be applied under the ADEA.

So, how can you protect vulnerable employees while avoiding claims of age and disability discrimination during the return-to-work phase? Below, we offer guidance in response to some frequently asked questions.

I’ve Reopened My Workplace, But I’m Worried About Certain Employees Who Are Especially Vulnerable to COVID-19. What Can I Do?

The best practice is to empower your employees to self-identify and request accommodations if they believe it is necessary. Consider polling all employees prior to implementing a return-to-work plan. Ask every employee whether they would like an accommodation based on a medical condition or other situation that makes them susceptible to COVID-19. If you have already implemented a return-to-work plan without a poll, consider conducting one now. This is a circumstance where you are “better late than never.”

If an employee or their doctor does not request a reasonable accommodation based on a special susceptibility to COVID-19, neither the ADA nor the ADEA requires you to take any special steps to protect the employee. This is true even if you know the employee has a condition that might put them uniquely at risk from the virus. Legally, you can and should treat the employee like any other, and only require them to follow the same protective measures as other employees. Enough uncertainty exists about COVID-19 that you should avoid making unnecessary decisions for the employee unless you believe they are putting other employees at risk.

Can I Bring Back My Less Vulnerable Employees Before My Vulnerable Employees?

In the vast majority of cases, no. The EEOC has confirmed that the ADA does not permit you to exclude an employee from the workplace, or take any other adverse action, solely because the employee has a disability. This remains true even if the CDC has opined that the disability places the employee at a higher risk of severe illness from COVID-19.

You must permit an employee covered by the ADA to return to the workplace unless (1) returning to work presents a “significant risk of substantial harm” to the employee’s health; and (2) there is no way to provide a reasonable accommodation that would reduce or eliminate the risk to the employee absent undue hardship to the business. These factors must be determined only after an “individualized assessment based on a reasonable medical judgment about [the] employee’s disability… using the most current medical knowledge and/or on the best available objective evidence.” In other words, a medical doctor must be involved. The assessment cannot be based on the employer’s knowledge of the employee’s disability in general.

While the EEOC hasn’t issued specific guidance concerning COVID-19 accommodations for older employees covered by the ADEA, you should take your cues from the EEOC’s ADA guidance. Employers should not automatically exclude employees from the workplace based solely on concerns that their age makes them vulnerable to COVID-19.

This same advice applies to new hires. The EEOC has made it clear that an employer may not postpone a start date or withdraw a job offer because the employee may be at higher risk from COVID-19. This includes employees who are over 65, pregnant, or have another underlying health condition.

As mentioned above, when deciding how best to treat employees covered by the ADA or ADEA during the COVID-19 health crisis, you should solicit your employees’ input and attempt to craft a solution that makes both parties comfortable. If no reasonable accommodation is possible to make the workplace safer for the employee, the employer should ask the employee if they would consider teleworking, taking leave, or accepting a reassignment to a safer job or worksite. A knowledgeable employment lawyer can help you approach these conversations in a constructive way that does not raise the specter of discrimination.

Can I Layoff or Continue to Furlough My Highest-Paid and/or Least-Productive Employees?

The answer to this question is a qualified “probably,” with a lawyerly dose of “it depends.”

As a result of the economic downturn caused by COVID-19, you may need to undertake a reduction in force (RIF) to eliminate employees who draw the highest wages. In many companies, the highest paid employees for any given role are the ones with the most seniority. Seniority tends to correlate positively with age. Thus, a RIF that eliminates the highest paid employees may include a disproportionate number of employees aged 40 and over and therefore look like age discrimination. Employment lawyers refer to this as “disparate impact” discrimination. A disparate impact claim involves employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.

Fortunately, in Smith v. City of Jackson, Mississippi, the Supreme Court explained that there is no such thing as a “disparate impact” age discrimination claim. Thus, you may RIF or furlough your highest paid employees without violating the ADEA unless your true motivation is to target age, not wages. This unlikely exception leaves a door open for a disgruntled employee to file a lawsuit and allege that your “cost cutting” measures were, in actuality, a pretext for age discrimination. The lawsuit can be expensive to defend even if your defense is successful. Thus, before starting a RIF, you should consult a knowledgeable employment lawyer to ensure that you communicate your decision in a way that will minimize the possibility of an age-discrimination lawsuit.

Unlike age discrimination, the Supreme Court explained in Raytheon Co. v. Hernandez that a plaintiff can file a disparate impact claim under the ADA. Thus, if you RIF your “least productive” employees, this might not seem to be targeted at disabled workers, but, in practice, the decision may fall more harshly on those who are most vulnerable to COVID-19 as a result of underlying health conditions. These health conditions may be “disabilities” under the ADA. Thus, before engaging in a RIF based on lack of productivity, an employer should assess whether the affected employees include those with known disabilities and consult with a knowledgeable employment lawyer to craft a strategy that minimizes the likelihood of a disparate impact claim.

Teleworking is a Privilege, So Can’t I Just Instruct Vulnerable Employees to Continue Teleworking?

Again, the answer is generally no. If an employee wants to return to the workplace, employers cannot require them to telework based solely on a concern that the employee’s age or underlying medical condition may make them more vulnerable to COVID-19 than other employees.

Employees may have a legitimate reason to wish to return to the workplace. Many employees believe they can be more productive if they are working from the office, so requiring an employee to work remotely could be viewed as an adverse employment action. Even if you ask them to continue working from home, your request may be perceived as an instruction.

Again, if an employee who is perceived to be vulnerable to COVID-19 wishes to return to work and has not requested an accommodation, the employer must be careful in imposing additional unrequested protective measures for the employee’s benefit. Employers should have a conversation with their potentially vulnerable employees about what reasonable accommodations can be put in place to reduce unnecessary risks to the employee’s health. Because these conversations can be delicate, employers should consult a knowledgeable employment attorney about how to have these conversations without causing offense.

Is There Anything Else I Should Know?

Regardless of where your business is located, Fox Rothschild’s national team of employment attorneys is here to guide you through your most complex labor and employment decisions. Reopening your business can be a challenging task, often in novel and unexpected ways. If you find yourself facing tricky questions, please feel free to email us or call 404.870.3763 and we will be pleased to assist.