Q: Can I terminate an agreement allowing an employee to work remotely?
A: Generally speaking, you may terminate a remote work agreement. The EEOC has made clear that employers do not have to permit employees to work remotely simply because they worked remotely during the pandemic.
However, if an employee has a disability, you will need to ensure that termination of a remote work agreement does not violate the ADA. The EEOC has acknowledged that employers may have suspended essential job functions during the pandemic and that employers are not required to continue suspending such functions. Accordingly, remote work may not serve as a reasonable accommodation even for an employee with a disability who worked remotely during the pandemic.
In addition to considering whether you have suspended essential job functions during the pandemic, assess whether your business or organization’s circumstances have changed since the pandemic so as to now render remote work an “undue hardship.” For example, a substantial decline in resources paired with an increase in consumer demand for in-person service may make continued remote work financially unfeasible.
Clearly communicate and document these factors when denying remote work requests. Moving forward, make clear that (1) onsite work is an essential job function, and (2) remote work agreements are generally subject to termination.
Q: What is the status of employer responsibility to provide employees notice of an employee with COVID-19 and contagious while onsite:
A: On a federal level, employers are not generally required to provide notice to employees that an employee with COVID-19 was onsite while contagious with COVID-19. Nevertheless, while not required, it is a good idea for employers to notify employees identified as potentially being in close contact with an employee who was onsite and contagious. Notification could enhance symptom monitoring and help reduce the number of employees who ultimately miss work.
Q: How should employers respond to a prospective employee who requests a religious accommodation to a vaccine requirement after receiving an employment offer?
A: Treat them exactly as you would a current employee who made the request.
Q: What if the remote work accommodation request is based on the health condition of a family member that places them at higher risk for serious complications from COVID-19?
A: Under the ADA, employers are required to consider only accommodation requests based on the employee’s own disability.
Q: Can I prevent my employees from taking care of their children or elderly relatives while working remotely?
A: Yes, you may prevent your employees from taking care of their children and elderly relatives—but how you do so can be critical. Use neutral language. For example, do not direct employees to “avoid motherly responsibilities while working.” Clearly communicate (consistent with your employee handbook) that you will only compensate employees for actual hours worked absent any express provisions to the contrary (e.g., holiday, vacation, paid sick time). Additionally, clearly define work hours and expectations.
Q: Has the 6 ft. social distancing guidance changed?
A: Yes, the CDC no longer recommends six-feet social distancing. Employers are nevertheless free to maintain whatever social distancing policies they deem prudent to create a safe workplace and protect employees from COVID-19.
Q: Does the OSHA general duty standard require a COVID-19 protocol to keep COVID-positive employees out of the workplace?
A: Yes, employers still need to maintain a COVID-19 protocol to keep COVID-positive employees out of the workplace. The General Duty Clause of the OSHA Act requires employers to provide a workplace safe from hazards. Although this requirement is not COVID-19 specific, OSHA has discussed it in the context of COVID-19 to support issuing citations to employers who fail to take reasonable measures to thwart the spread of COVID-19 to their employees in the workplace.
