The COVID-19 pandemic and related “stay-at-home” orders have required changes to employers’ everyday practices, impacting nearly all aspects of operations. Employers have worked hard to meet the demand for rapid flexibility in the interest of continuing operations and keeping their workforce safe and intact. For good reason, many of these policies (such as temporary remote work policies) may have been implemented outside of the traditional planning processes that employers use when rolling out new policies.
Now that stay-at-home orders are being lifted, employers can expect increased scrutiny of their decisions. For example, requests to work remotely—and denials of those requests—have been a hot litigation topic under the Americans with Disabilities Act in recent years. We anticipate unique post-pandemic litigation to raise several employment law issues, including these issues related specifically to the ADA:
- How have accommodations to work remotely or alternative schedules during the pandemic impacted employers’ ability to grant (or deny) requests to alter work arrangements under the ADA in the future?
- When are employers entitled to make medical inquiries of their employees, whether to assess an employee’s ability to perform the essential functions of the job or to determine if an employee presents a direct threat?
- What factors should employers consider when deciding the order of calling workers back? Is it appropriate to consider an employee’s health or requests for accommodation in restoring the workforce?
As we look forward to returning to “business-as-usual” (or, perhaps more accurately, a more permanent version of the new normal), employers should take the opportunity to critically assess their response to COVID-19 and make informed and well-considered decisions moving forward. To minimize risk, employers should review and update relevant policies, including, for example, policies addressing attendance and work arrangements. Employers should also stay abreast of the latest agency guidance on workplace screening and return-to-work preparedness plans, keeping in mind that the employer bears the burden of ensuring ADA compliance.