Woman in protective mask goes through a temperature control before working in the office. … [+]
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The U.S. Equal Employment Opportunity Commission will hold a virtual hearing tomorrow to investigate the impact of the Covid-19 pandemic on workers’ civil rights.
More than a dozen experts were invited to discuss the difficulties facing employers trying to resolve potential employment discrimination problems addressed by Covid-19 and the challenges the pandemic will pose for businesses in the future and could represent their employees.
The two panels of experts due to speak will likely have a lot to talk about, based on the insights that lawyers and others have shared with me.
“Employers have struggled to navigate a range of workplace discrimination issues,” said Lauren Paxton, Employment Partner at law firm Calcagni & Kanefsky.
Not a single approach
She noted, “Disability discrimination has been a major concern throughout the pandemic. There is no one-size-fits-all approach to housing workers with disabilities who are particularly vulnerable to Covid-19. Deciding whether to allow certain employees to remain unemployed based on underlying health conditions and navigating the maze of state and local vacation laws has been a breeze for employers.
“These challenges are particularly acute for healthcare employers and other critical services. Employers in traditional office settings are now dealing with return plans that take into account employees who refuse Covid-19 vaccinations (or other safety precautions) for religious or medical reasons, “she noted.
Vaccination problems
Paxton said the EEOC’s previous guidance “… places a significant burden on employers who have to comply with universal vaccination requirements. Employers considering such a requirement must be willing to justify the decision by showing, among other things, how an unvaccinated worker with a disability can pose a “direct threat” to safety in the workplace, and by doing so Provide evidence of a lack of available accommodation. “
Michael Elkins is a partner and founder of MLE Law, a work and employment / business law firm. He said: “The problem that currently affects employers the most, and that is of immediate concern, is whether workers need to be vaccinated.”
Complex questions
“Employers face complex issues on both sides,” he said. “For example, if an employer does not require vaccination, what if there is a contingent of employees who refuse to work with unvaccinated employees? Employers are also faced with the challenge of what to do with workers who refuse to be vaccinated. “
As I reported in a post in April, a new survey found that 66% of employees in the US are concerned about their health and safety when they return to work. More than 60% support mandatory vaccine requirements at work and fear employers may relax Covid measures too soon.
Increased litigation
According to Tim Ford, a partner of Einhorn Barbarito Frost & Botwinick, companies are already facing increasing numbers of legal disputes due to the pandemic. He noted that “many family vacation claims have arisen under the Family and Sick Leave Act and the Family First Coronavirus Response Act.”
He said: “Employees have allegedly tampered with sheltered vacations due to employees who contracted coronavirus or had to be quarantined due to possible exposure. Family vacations and the requirement to find reasonable accommodation under American with Disabilities Act and various state laws are often the most complex issues employers face. “
Allegations of improper practice
“In addition, suspected whistleblowers have filed a spate of complaints alleging employers engaged in inappropriate practices regarding coronavirus restrictions. In the ministries of health and labor, workers have filed an increasing number of complaints over the past 14 months that employers have failed to comply with required safety rules or guidelines. “
Ford predicted, “The outcome of these complaints may not come to fruition for years as the courts have difficulty handling an elevated file number while most states have closed their cases.”
Pamela Moore, a partner in the Labor and Employment Practice at McCarter & English, said, “Since Covid-19 is typically a short-term illness, most employees affected by Covid are not considered disabled under federal law. There are of course some states where even temporary disabilities are covered by the State’s Fair Employment Practices Act … “
Covid long distance drivers
“The bigger problem from a discrimination perspective,” Moore said, “concerns long-distance Covid drivers (people who have been affected by Covid for months after the fact and the mental health problems that have emerged from the pandemic.”
“Covid fatigue is a recently identified mental illness that has symptoms of depression, anxiety / worry and loneliness. [That’s why] Employers are likely to face the effects of the pandemic long after workers return, ”she said.
Reasonable Precautions
“In addition to discrimination issues,” said Moore, “employers will face long-term problems meeting workers’ expectations of” reasonable accommodation “.
“Given that employees whose work does not normally allow them to work from home have been allowed to do so for an extended period of time, it is very likely that employers will be asked to continue to allow workers to work from home who actually do not work Well suited for home work, ”said Moore.
“What the EEOC and the courts will do with the precedent set during the pandemic on this issue is likely to be a very hot topic for the months and years to come,” predicted Moore.
Behavioral health claims
“I think we are likely to see an increase in behavioral health claims as the pandemic has affected people’s mental health, especially among frontline health workers …” said Carla O’Sullivan, senior compliance manager at ReedGroup that provide vacation management services.
“Throw in months of social isolation and we have a recipe for mental disaster. Even if Covid is brought under control, employers will have to prepare for an onslaught of mental disabilities, ”she said.
“Employers should now take steps to help their workforce heal (encourage employees to take vacation and, if possible, take paid time off, offer employee assistance programs (EAPs) and other wellness programs,” recommended O’Sullivan.
She said businesses should anticipate and prepare for increased numbers of mental health-related accommodations in the future. “Employers need to remember that behavioral health claims and housing are notoriously more difficult to manage than non-behavioral health [claims]… “can raise other discrimination problems.
tip of the iceberg
The issues being explored at tomorrow’s EEOC hearing are just some of the many challenges executives will face as the coronavirus crisis relaxes and more people return to work.
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