Careful With Those Return To Work Policies

I had the pleasure this week of speaking with Washington Post Work Advice columnist Karla Miller about pitfalls that employers face when creating return-to-work policies. Karla was asked why parents could continue to work remotely but not workers on the same team without young children—could this be discrimination?

Well, it depends.

When it comes to these policies, employers must take care not to run afoul of federal and state anti-discrimination laws. Employers and employees alike should be transparent and willing to compromise on what they want from each other. Indeed, flexibility is key.

I advised Karla here,

“We’re coming back to the office; if there’s a reason you can’t come back to the office, let’s discuss” — and to be especially mindful of individual worker situations entitled to accommodation or protection under the federal Americans With Disabilities Act or the Family and Medical Leave Act, as well as state laws. Are the employees caregivers to children or immunocompromised people? Are they pregnant or immunocompromised themselves? Do they have diagnosed anxiety, PTSD or other mental and emotional aftereffects from living through a pandemic?

For sure, working parents are suffering, no doubt about it. I wrote about this, stats included, here.

Yet, while a plan to return to work includes safety considerations, open and continuous communication, compliance with anti-discrimination laws, and flexibility, employers should be mindful that flexibility for one group does not create a disparate impact on another group.

What Is a Disparate Impact?

A “disparate impact” occurs when a neutral policy or practice, in an actual, real life setting, has a disproportionate and discriminatory effect on a protected class. No need to show intent. Rather, it is the impact or effect that is critical.

The EEOC’s, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, provides clear guidance on this issue—an employer must ensure it is not treating older workers “less favorably” based on age when it allows other, comparable employees to work from home. And, employers that allow employees with kids the flexibility to work from home or on another modified work schedule due to school or day-care closures caused by the COVID-19 pandemic (yay for flexibility!) must be careful not to treat employees differently “based on sex or other EEO-protected characteristics.”

The EEOC COVID-19 pandemic guidance provides this example:

For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

An employer really must account for all the things.

Indeed, there are bound to be workers with disabilities who need reasonable accommodations under the Americans with Disabilities Act (ADA) before returning to the office. Not just the employees you knew about, but those who have developed mental health conditions during and as a result of the pandemic.

What about pregnant employees who need accommodations or cannot get a vaccine and those whose disabilities who may not have been able to get a COVID-19 vaccine? Do you know your obligations to these workers?

What are the state requirements? What’s your COVID-19 vaccine/proof of vaccine policy? While I’ve named just a few, the takeaway here is that reopening must be done thoughtfully and holistically, accounting for a myriad of factors.