Issue link: http://palletcentral.uberflip.com/i/1311385
14 PalletCentral • November-December 2020 palletcentral.com says Sholinsky. "They should be flexible and creative in developing policies that maximize productivity and ensure the highest levels of safety." Playing Fair Employers need to avoid intentional or nonintentional discrimination in selecting people to return to work, either part or full time, after a furlough or layoff. "Keep in mind that when everyone is not recalled, someone is laid off," says Gregg. "The demographics of the exceptions should be worked through." There should be no pattern by age, disability, race or gender. The law explicitly prohibits adverse actions against anyone who has taken time off as a direct result of the COVID-19 outbreak. "Employers may be subject to retaliation claims when employees are terminated or otherwise subject to adverse employment actions after they have taken sick leave, a leave of absence under the Family and Medical Leave Act (FMLA), or under a COVID-19-specific law such as the Families First Coronavirus Response Act (FFCRA)," says Sholinsky. Particular care should be taken if someone in a managerial role is overheard saying the pandemic has created a golden opportunity to not bring back a "difficult" employee. Furthermore, "You have to take a step back and figure out why the employee is labeled difficult," says Gregg. "Is it because of poor performance, or because they have spoken up on protected matters concerning safety or employment?" The Americans With Disabilities Act (ADA) and equivalent state and local laws create an especially hazardous legal terrain. An employer should not deny a request for a workplace modification to obviate infection if such a modification would be a reasonable accommodation for a medical condition or other COVID-19 related disability. And the ADA legal coin has an obverse side. "Some employers may decide to keep people with underlying conditions, the at-risk folks, out of the office," says Gregg. "The fear is that if they come back they will be more susceptible to catching the virus with a more serious result." Yet excluding at-risk people can be tricky. "Who is at risk?" poses Gregg. "Anyone over the age of 60. So, the employer is tempted to say, 'Older people cannot come back.' Well, that means they cannot earn money and that can create an age discrimination issue." The decision to exclude people from a back to work program must be based on more than a stereotypical presumption, says Gregg. The ADA's "direct threat standard" states that employers can exclude workers only when there is actual evidence that they pose direct threats to themselves or others – perhaps because they have told the employer they have an underlying condition or they have a relevant symptom. The need for a direct threat extends to a requirement for a medical examination. "The employer cannot send someone to the doctor to validate that they are okay to come back to work, if that same requirement was not made for everyone else," says Gregg. "There needs to be more than a perception of a disability to send a person to the doctor." Attorneys caution that pay equivalency is not a defense against discrimination in these cases. "Even if the salary would be the same, the individual who has been denied full employment may lose out on valuable perks of actually working at the office," says Gregg. "These might include client contacts, important sales meetings, or just generally being 'in the know.' They might even miss out on promotions: If you are not seen, you are not considered." While the ADA only covers businesses with 15 or more workers, most states have similar laws for smaller organizations. Answering Questions Creating a safe workplace is one thing. Building the trust of employees is another. People must understand that everything possible has been done to protect their health and safety. Open communication can go a long way toward calming employee jitters. "Transparent communication is critical right now," says Hagaman. "Employers need to prevent confusion among their teams by answering their questions before they re-enter the workplace." Not the least of challenges is that of communicating the panoply of new procedures to employees who may Coppersmith Photography