Episode 30: Leave, the ADA and return to work

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