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What is the ADA? And What Does It Have to do with COVID-19?

HR Brief
July 1, 2020

What is the ADA?  And what does it have to do with COVID-19?

Last month we covered the topic of recent updates to OSHA guidance related to reopening from COVID-19 and presented recommendations for documenting COVID-positive cases in the workplace.  Further, we offered actions the Employer can take to lessen any risks associated with safety incidents, charges, workers’ comp claims, etc. related to COVID-19.  This month, as promised, we’ll be delving into the exciting topic of the ADA–The Americans with Disabilities Act–and how this civil rights law impacts your business – and how it should cause you to pause when responding to a laid off, furloughed, or active employee who refuses to return to work, or perhaps an employee who refuses to wear a face covering.  So, let’s dive in!

First, let me preface my sharing this information by stating that the ADA, when enacted, was a much-needed law and I’m all for it!  I adopted a mentally-disabled daughter many years ago.  I have a heart for and an understanding of the need for the ADA.   In 1990, the ADA was passed.  It applies to employers with (15+) employees in the present or prior year.  Titles II and III of the ADA are associated with employment and prevents private employers, state and local governments, and other various entities from discrimination of a physically or mentally disabled qualified applicant, candidate, or employee.  This could include hiring, promotions, training– any employment decision.  Among other protections and benefits, the ADA also provides employees with disabilities the right to ask the employer for an accommodation, which the employee (usually along with their health provider) believe would enable him/her to perform the essential function(s) of his/her job that he/she is unable to do because of a disability.  Employers are then obligated under this law to consider all reasonable accommodations requested. A reasonable accommodation does not include having a coworker perform the task for the employee.  Following that request, an open dialogue should begin between the Employer, employee and the employee’s health provider.  Additionally,  the Employer’s knowledge of an obvious disability which interferes with the successful performance of an essential function is also enough to begin this required dialogue.   The goal is always to come to an agreement as to how the Employer can reasonably accommodate the employee to perform the particular job.  This could mean something as simple as a special type of keyboard or audio/microphone headset, or a certain kind of chair.  Please keep this mind – the ADA also provides a prescribed pathway for legal action by employees with disabilities when their request for consideration is ignored, or refused, before any dialogue takes place, for example.

So…what does all this background information have to do with COVID-19?  As businesses are beginning to reopen, moving employees back to onsite locations, and recall prior employees or furloughed employees back to work, knowledge of the ADA is a must for all Employers and even for my peeps–small business Owners and Managers.  If you had at least (15) employees last year, or the first of this year, you are obligated under Federal law to consider the ADA when that prior employee responds, (1) “I’m in a high-risk category.  I want to work, but I just can’t return to work right now.”  Or (2) “I’ll return to work, but only if I can get an exception from wearing a mask.”  Or you are bringing your employees back to the office from teleworking and you get, (3) “No, I can’t get out and risk exposing myself to COVID.”

Each of these responses, require a certain thought process from you or your HR person.

  1. In response #1, if you push the person to return to work, with no consideration of a possible disability,  you’re increasing your litigation risk level needlessly.  If this individual wants to return to work as stated, and he/she has offered that they are in a “high-risk category”; you can begin a typical post-offer screening and should ask if they would like to discuss any types of reasonable accommodations that the Company may be able to make in order to get them back to work.  Their “yes” answer would then open the door for an interactive dialogue that would include a health questionnaire, specifying the essential functions of the job, recommending the employee schedule a trip to their health provider, and further discussion.  [In the case of post-offer discussions, I strongly recommend doing this through your Company Doctor, who should be in the field of Occupational Medicine.  I can offer a referral if needed.]  Your efforts may produce nothing, but you’ve fulfilled your due-diligence in the ADA process to work with a prior employee who has expressed a desire to return to work.  The flip side of this dialogue is to inform him/her that NC and SC, as well as other states, have set up an avenue for Employers to report when they try to recall laid-off employees and are met with a refusal to work.  This, of course, is not a threat, but you would want to be sure they understood that unemployment benefits can be impacted by their refusal to work; going on to say something to the effect of……., “we’d be more than willing to see how we could work together to determine if there’s a way to bring you back to work safely, and put you at ease so you can return.”
  2. Response #2–Again, don’t immediately respond with “no exception” policy lingo.  In some cases, an individual may be unable to wear a mask due to a medical condition.  To write this former employee off with no thought of the ADA and where your responsibility lies could again, increase risks needlessly.  Once again, you would want to start with the Company Doctor after an offer to return is made.  If you choose not to go through your Company Doctor, in this scenario, insist on documentation from the individual’s health provider indicating whether he/she can wear a mask and if not, why.  The following question would need an answer, “What reasonable accommodation would you (the Physician) recommend we consider in order to protect this person, his/her coworkers (or our customers) and meet the current State Executive Order to wear a face covering? and does [Joe/Susie] agree?”  Place a time frame on when you expect the completed information be returned.  Follow- up once if the information’s arrival exceeds the deadline.  If you don’t hear anything, your only assumption is that the individual changed their mind and really didn’t want to work, or just didn’t want to work for you.  I would report to NCDES (www.des.nc.gov) that you attempted a job offer and it was refused.  Be sure to keep all documentation associated with this exchange in this prior employee’s file.
  3. Response #3 is slightly different in that this is a current employee who has been allowed to work from home during the past few months of the Pandemic.  As an Employer, perhaps your IT department scrambled to put critical things in place to secure your technology and data by going virtual, and now you are ready to bring certain groups of employees back whose department’s responsibilities have suffered–no fault to the employees.  So, you need this employee back on site in order to perform all essential functions of the job.  This employee may have a health condition that puts them in a high-risk category.  So, again, an open dialogue must begin because the decision has been made that this department is returning to onsite work due to that area of responsibility declining and impacting the business with only certain job tasks being completed.  Requiring the interaction of his/her medical Physician, documentation/completed health questionnaire, and recommended accommodations are necessary before you can proceed with any decision.

These scenarios emphasize the importance of maintaining up-to-date, comprehensive job descriptions for every position in the business.  And Response #3 reminds us that if a job cannot be efficiently performed remotely, be sure to indicate that in the job description.  You can include something like,  ‘Essential functions must be performed on site only.’ Or ‘Essential Functions may be performed remotely if circumstances require it as management stipulates.”  If the job must be done on your site only, you have to be able to explain why.  So, in this recent crisis (COVID-19), you might document any negative stats that were a direct result of remote work in various positions within your Company.

Job Descriptions, including the Physical Demands of the job, are a necessity to the interactive dialogue process for ADA discussions.  HR Engagement, LLC can assist you with these timely discussions or give instruction, if needed.  We can also guide you through your action plan to the above Responses, and provide templates of job descriptions, letters, and forms you’ll need.

Well, I didn’t even get to how COVID-19 is impacting our workforce mentally…depression and anxiety are on the rise in significant proportions.  Stats show that only half of your employees are willing to discuss mental health issues.  Consider this staggering quote from an article from Forbes online, “The hotline, run by the Substance Abuse and Mental Health Services Administration, reported 20,000 texts last month—compared to 1,790 in April of 2019.”1  That’s over a 1,000% increase!  Depression, fear, anxiety…all these absolutely impact the efficient jobs your folks are able to do each day.  Empathy!  Remember, to express empathy as your employees return and express their concerns to you.

If you haven’t considered an Employee Assistance Program (EAP), you might check into one.  An EAP provides many benefits to the management members of a Company in managing employees, but more than that, an EAP can provide free counseling and an array of services to your employees and their families–a benefit YOU, the Employer, would provide them.  Reach out to me, and I’ll put you in contact with a reputable partner with ADP, who can answer your questions regarding ADP’s Employee Assistance Program.

Thanks to all who have called on HR Engagement, LLC in the past month for HR consulting, Handbook updates, and for allowing me to conduct targeted Training for your front-line managers!  It’s a joy to answer the phone and know that I can be of help, and offer you assurance that we are going to get through this (whatever “this” is)!  One sweet Client refers to me as her “HR ray of sunshine!”  😊

If you haven’t taken time to take a look around my website, please do at  www.hrengagement.com .  And call me for any HR-related service or questions!  I’m always thrilled to be here for you!

Take care and be safe,

 HR Engagement, LLC

 Liz Pflieger, PHR, SHRM-CP

Consultant/Owner

www.hrengagement.com

Kings Mountain, NC  28086

704/466-1202

110-Eye-Opening Statistics on The Mental Health Impact of the Coronavirus Pandemic, by Naz Beheshti, https://www.forbes.com/sites/nazbeheshti/2020/05/28/10-eye-opening-statistics-on-the-mental-health-impact-of-the-coronavirus-pandemic/#7a4e530b2df0

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