October 23, 2020
By Anne E. Baggott
Employers are continuing to grapple with work-from-home (WFH) and return-to-work (RTW) issues during the COVID-19 pandemic. Here are a few answers to commonly asked questions.
- Travel inquiries. Employers may ask where an employee has traveled to assess whether the employee’s return to work poses additional risk of exposure for co-workers. Employers may also require the employee to work from home upon return from travel or provide a negative COVID-19 test, so long as the testing is job-related and consistent with business necessity.
- Privacy. The Americans with Disabilities Act (ADA) requires employers to keep employees’ medical information, which includes symptoms of or diagnosis of COVID-19, confidential. However, employers must take steps to identify close contacts of employees diagnosed with the disease to protect the workplace from community transmission and identify others who may need to quarantine. The employer should use only a generic description of the employee, such as “registered nurse working on the third shift” or “employee on the second floor.” Co-workers may be able to determine the identity of the employee, but the company may not confirm or reveal the identity.
- Accommodations for a disabled family member. The ADA does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member or other association. Employers are not required under the ADA to permit an employee to work from home as an accommodation to protect a family member with a disability from potential COVID-19 exposure. Employers may choose to provide this flexibility if it makes sense for the business.
- Teleworking accommodation. Before the pandemic, many employers denied an employee’s request to work from home because of concerns the employee would not be able to perform the essential functions of the job remotely. If the company permitted the employee to work from home to slow or stop the spread of COVID-19, such as during a government-mandated closure, and the employee effectively teleworked, the employer should consider any new requests to telework in light of this information. The company and the employee should engage in a flexible, cooperative interactive process to reach a reasonable accommodation.
- Age. The CDC has explained that individuals age 65 and older are at a higher risk for COVID-19 complications. An employer may not automatically exclude these workers from the workplace, even if acting out of benevolent reasons. If the employee requests an accommodation due to age-based risk factors, employer and employee should engage in an interactive process to determine if teleworking is a reasonable accommodation.