Episode 30: Leave, the ADA and return to work

June 09, 2021

coworkers gathered in office

Episode details

Unum employment law experts Daris Freeman and Tamika Newson join Clare Morin in the HR Trends studio to update employers on legal considerations for leave, the Americans With Disabilities Act (ADA) and other issues as employees begin returning to offices and worksites after the pandemic.

  • Challenges from rise of remote/hybrid work:
    • Most leave laws don’t address the complexities of remote or hybrid work. With more people working away from the company’s physical location, employers are struggling to determine which leave laws apply to which employees. Some states have provided clear guidance, while others have not. Checking with your legal counsel is the wisest course of action for making correct, consistent decisions. (1:30)
    • With workers scattered to different cities, states and even countries since the beginning of the pandemic, it’s even more important for leave administrators to ensure that employee information is up to date. They also need to put clear parameters around their policies — most will not want to administer leave for workers living in foreign countries, for example. (5:00)
  • ADA and vaccinations:
    • Employers who decide to mandate vaccinations may face ADA discrimination claims from those who aren’t vaccinated. On the other hand, vaccinated employees may not feel safe returning to work with unvaccinated co-workers and may have claims of their own. (6:30)
    • Guidance on this issue is evolving daily, so employers should stay engaged to be sure they are following the latest regulations. (8:19)
    • Note: After this podcast was recorded, the Equal Employment Opportunity Commission (EEOC) issued new guidance reaffirming that federal equal employment opportunity laws do not prohibit employers from requiring or incentivizing vaccination, provided they comply with ADA and other accommodation provisions.
  • Return to work best practices:
    • To help employees feel safe, employers can implement in-work accommodations such as mask requirements and six-foot spacing between desks. The Centers for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA) have outlined some guidance in this area. (8:50)
    • Temporary work from home can also be considered an accommodation, but be sure the basis for requiring a return to the workplace is clear. Also revisit relevant job descriptions to make clear that being in the workplace is an essential job function. Consistent practices are important. (9:58)
    • For positions that transition to permanent work from home, formal standards for remote work should be implemented, such as requiring that employees have a dedicated workspace free of distractions. (11:05)
  • Additional resources: Human Resource Executive Live Event — Revisiting COVID-19, Paid Leave and the ADA: Ask the Legal Experts

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Daris Freeman headshot

Daris Freeman

Assistant Vice President, Legal Counsel, Unum's employment law group

As Assistant Vice President, Legal Counsel for Unum, Daris’ primary responsibility is to support Unum’s Absence Management Center which administers FMLA, paid leave, ADA and over 200 complementary state laws. Daris partners with the operation and their clients to develop compliant solutions for their unique absence management challenges. Most recently, her time has been dedicated to the paid leave landscape, implementing solutions for customers and working with state agencies on development of their programs.

Tamika Newson headshot

Tamika Newson

Assistant Vice President and Legal Counsel, Unum's employment law group

Tamika Newson joined Unum after 22 years of employment law counseling and litigation as a partner in several large law firms. Prior to joining Unum, she litigated employment matters nationwide. Tamika advises Human Resources on all employment-related legal issues, with particular emphasis on FMLA, ADA, leaves of absence, wage/hour compliance, military leaves, restrictive covenants and employee-relations issues. She also provides daily legal support to Unum's Leave Management Center and its ADA Services Center. Tamika received her BA from DePauw University and her JD from Hamline University School of Law (now Mitchell Hamline). She is a certified trainer for CE credit and is a frequent national speaker on FMLA and ADA. She has been selected as a “Best Lawyer in America” in the area of employment law every year from 2013 to 2019.

About the host

Clare Morin headshot

Clare Morin

Unum Content Marketing Manager

Clare Morin is the Content Marketing Manager at Unum and a journalist who’s spent the last 20 years interviewing hundreds of thought leaders on topics ranging from wellness to culture, finance, human resources and technology. Born in the UK, raised in Hong Kong and based in the U.S. since 2009, she brings a global outlook to the HR Trends studio.

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These resources are not intended to constitute legal advice and are for general educational purposes only.
If you need legal advice on a particular situation, please contact your own attorney.