Three Tips to Mitigate Employment Discrimination Risks As Stay-at-Home Orders Are Lifted

By: Lewis Brisbois' Labor & Employment Team

Many businesses are now being challenged to return some or all of their furloughed employees to work based on the modification or elimination of stay-at-home orders and other state and local restrictions. This post discusses three tips that employers should consider to help mitigate the risks of exposure to employment discrimination claims under federal, state, and local laws as this process unfolds.

Document Your Recall Policy

In an ideal world, employers would invite all furloughed employees to return as soon as the government permits doing so. However, with safety measures such as social distancing remaining in place and the likelihood that business operations may not immediately start up in full gear, employers may not be able to recall all of their furloughed employees at once. To mitigate risks against potential discrimination claims by employees who may not be invited to return, employers may want to adopt a written recall policy listing the decision-making criteria. The criteria can include factors such as seniority, attendance/reliability, availability, documented performance issues, documented evaluations pertaining to quality of work and skills, and business needs. The key point is to ensure that the criteria are based on legitimate, non-discriminatory reasons in order to avoid claims by particular employees that they were excluded based on their membership in protected categories such as race, sex, and sexual orientation. Particular focus should be paid to age and disability, as addressed below. Employers may assume that older workers and some workers with disabilities would not feel safe in the workplace. Making those assumptions may be perilous.

Be Cautious As to 65 or Older and Pregnant Employees

The CDC has identified those who are 65 or older and pregnant women as being at greater risk from COVID-19. However, the EEOC has provided guidance that their vulnerability does not justify unilaterally postponing the start date of these individuals. It would be advisable to consider individualized inquiries with employees in those protected categories as to whether they feel safe returning and whether there is any accommodation possible to assist with their return. 

Be Cautious When Considering Disabled Employees

The EEOC has provided guidance that prior to re-opening, employers may begin the "interactive process,” which is a discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. Therefore, the best practice is to ask employees with known disabilities to discuss a possible return to work and to identify any accommodations they believe they may need when the workplace re-opens. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means "significant difficulty or expense." The loss of income during the pandemic may be a relevant consideration. However, this does not mean that an employer can reject any accommodation simply because it costs money. The term “interactive process” means employers and employees should work together to determine if there may be available alternative accommodations that does not present an undue hardship. This process must necessarily be an individualized one, as each disabled employee’s situation will be unique and must treated as such.

For the above reasons, it is advisable to consider consulting counsel for assistance with this process. Visit our Labor & Employment Practice page to find an attorney in your area.

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