As employers consider returning employees to the workplace, it is difficult to navigate all of the applicable laws and guidance from various state and federal agencies. Here are a few helpful reminders and links to resources:
- Employers may ask employees with disabilities if they will need reasonable accommodations to be able to return to the workplace.
- Employers may send a general notice to all employees who are selected for return to work that explains how employees request accommodations and the employer’s process for considering/granting accommodations.
- Employees are not entitled to an accommodation under the ADA solely in order to avoid exposing a family member who is at a higher risk of severe illness from Covid-19 because of an underlying medical condition.
Employers cannot exclude employees who have underlying conditions or are over age 65 from returning to the workplace just because the employer fears the employee is vulnerable to Covid-19.
- Employers may require employees who do not want to return to the workplace because of an underlying medical condition to provide certification from a medical professional to determine if the employee has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
- Employers may require employees to wear masks at work and can discipline or terminate an employee who refuses to wear a mask unless the refusal is based on disability or religious belief, in which case the employer must engage in the interactive process to determine whether there is a reasonable accommodation available that does not impose undue hardship (or, with respect to disability accommodation, does not pose a direct threat).
- Current authority suggests that employees cannot refuse to return to work on the grounds that exposure to Covid-19 creates a risk of death or serious physical harm under OSHA standards. https://www.osha.gov/right-to-refuse.html
Employers faced with specific accommodation issues, employee refusals to wear masks, or an employee who refuses to return to work on OSHA hazard grounds should consult with counsel.
Guidance from the EEOC is here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
BOLI guidance on masks and face shields is here: https://www.oregon.gov/boli/employers/Pages/face-coverings.aspx
Multnomah County guidance for employers if an employee tests positive for Covid-19 is here: https://multco.us/novel-coronavirus-covid-19/guidance-employers-positive-case