NO EXTENSION OF FFCRA PAID SICK LEAVE/SCHOOL CLOSURE LEAVE; TAX CREDIT EXTENDED FOR 3 MONTHS

Posted On December 23, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

December 23, 2020

 

FFCRA 300x300As of this writing, Congress has passed a new COVID-19 relief bill, the Consolidated Appropriations Act, 2021, but President Trump responded with a hissy fit and the threat of a veto.  However, the paltry tax credit extension discussed in this post has not been brought up for criticism and so is likely to remain as is despite any other revisions the bill may undergo.  If anything changes, though, you can bet we’ll write about it here.

The bill has surprised many of us as it contains no extension or expansion of the emergency paid sick leave or the expanded paid FMLA for school closures provided in the Families First Coronavirus Response Act.  Those mandated paid leaves expire on December 31, 2020, regardless of whether an employee has used all of his/her entitlement. If you need a refresher on the paid leave provisions of FFCRA you can check out our prior blog post here.

Tax credit extended.  On the other hand, the tax credit provided for wages paid by private employers as required by FFCRA have been extended by 3 months, for FFCRA-like wages paid through March 31, 2021.  What does this mean, you ask?  Great question.  The language of the CAA is poorly constructed.  But here is what appears to be the best interpretation:

  • There is no requirement for employers to provide further emergency paid sick leave or expanded FMLA leave for school closures after December 31, 2020.
  • An employer may choose to do so voluntarily, but further school closure leave will not count against an employee’s basic FMLA 12-week entitlement.
  • If such leave is paid in accordance with the FFCRA requirements applicable up to December 31, 2020, the employer can still claim a tax credit for wages paid through March 31, 2021.
  • However, the employer cannot claim a total tax credit in 2020 and 2021 combined for more wages per individual than the amount of paid leave required by FFCRA in 2020 – that is, 80 hours or part time equivalent of paid sick leave and 10 out of the 12 weeks of expanded FMLA, at the rates of pay specified in FFCRA.

What do employers need to do now?

  • Decide right away whether you are going to allow more FFCRA-like paid leave on a voluntary basis. If you do, apply that decision consistently across the board – either all employees with a qualifying reason can still take FFCRA-like paid leave through March 31 or none can. This includes both continuation of existing leaves and new leaves for a qualifying reason in the first 3 months of 2021.Of course, you can always allow such leave for as long and in such amounts as you choose through a company policy leave program.

    Be aware that if you do not continue FFCRA-like leaves into 2021, some employees may already be on continuous or intermittent leaves that would otherwise extend into 2021 and these will end on December 31, 2020. 

  • If you decide you are going to allow more FFCRA-like leave and care about the tax credit, be sure to get the documentation the IRS will require to support the credits. We previously summarized the IRS guidance for claiming the tax credit here.
  • Regardless of your decision on continued FFCRA-like leaves in 2021, remember that there are still many state and municipal laws, governors’ proclamations, and the like that provide at least temporary COVID-related leaves and job protections. And don’t forget the Americans with Disabilities Act as it may apply in this COVID world.

If Matrix is managing your FFCRA expanded FMLA leave for school closures, get in touch with your account manager right away to let us know your decision regarding continuation of these leaves into 2021.  We cannot charge any such leave against an employee’s FMLA entitlement after December 31, 2020, so all such pending leaves will be closed as of that date.  But we do have options for you, including switching the time requested to a personal leave of absence or instituting a company policy leave for school closures.  Congress has left us with very little time to deal with this situation, but we will do our best to stay up to date with our clients’ directions.

Matrix can help.  At Matrix we have developed a variety of pandemic-related leaves for employers that don’t have existing policies to cover all the COVID-related situations, such as leave due to quarantine or school closures.  If you are interested in learning more about these options, contact your Matrix or Reliance Standard account manager, or send a message to ping@matrixcos.com.

COLORADO PAID FAMILY AND MEDICAL LEAVE

Posted On December 14, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

December 14, 2020

 

For several years the Colorado legislature tried without success to pass paid family and medical leave legislation.  In 2020 the voters took matters into their own hands and voted in favor of a ballot initiative (Proposition 118) to create a PFML program.  PFML geeks may recall that in Massachusetts in 2018 PFML supporters took the same route but in what came to be called The Grand Bargain, the legislature passed a PFML bill to keep voter initiatives off the ballot.  This did not occur in Colorado, perhaps because of its short legislative session that ends in mid-May or perhaps because of an inability to get consensus even in the face of a ballot measure.  In any event, Colorado PFML is now law and will be a reality soon. 

Some interesting features.  At Matrix we administer private plans for many state paid family and medical leave programs, and we are working on implementation of others so we’ve seen all kinds of PFML programs.  Here are some things we find interesting or encouraging about the Colorado program:

  • There is no waiting period – benefits are payable from the employee’s first day of covered leave.
  • There is only one 12-week bucket of leave entitlement for all leave reasons, rather than different buckets for things like the employee’s own serious health condition vs. family leave for bonding or caring for a family member (check out Massachusetts).
  • The law follows a new trend by providing an additional 4 weeks of leave available to an employee experiencing complications from pregnancy or childbirth.
  • The definition of “family member” also follows a recent trend of including someone who is not related by blood or marriage but is “like a family member” to the employee.
  • The statute is blessedly specific on concurrency of an employee’s use of federal FMLA, disability benefits, and paid time off.This prevents stacking of FMLA leave and leave during use of disability benefits (that is, sequential rather than concurrent use).On the other hand, the law preserves the employee’s right to save employer-provided accrued time off for other purposes or choose to use it to top up PFML benefits to the employee’s average weekly wage.

Here are the details we know now, based on the new statute.

Topic

Description

Colorado Revised Statutes

Administration

  • State plan:Colorado Department of Labor
    • New Division of Family and Medical Leave Insuranceto be created, led by a Director
  • Private plans permitted
    • Must meet or exceed benefits provided under statute and not impose greater employee obligations
    • Insured by an insurer approved by the state
    • Self-funded – requires a bond

§8-13.3-408

§8-13.3-421

Contributions / Premiums

  • Start:January 1, 2023
  • Amount:
    • 2023-2024:0.9% of employee’s wages
    • 2025 and after:rate may be adjusted according to a described formula but not to exceed 1.2% of employee’s wages
    • Wages subject to contribution capped at federal SSA limit
    • Employer can require employees to contribute up to ½ of total premium
    • Employers with fewer than 10 employees do not have to contribute the employer’s share of premiums to the state; must still contribute the employees’ share

§8-13.3-416(1)

§8-13.3-407

Benefits

  • Start:January 1, 2024
  • Amount:
    • 90% of the employee’s average weekly wage (AWW) that is equal to or less than 50% of the state AWW
    • PLUS
    • 50% of the employee’s AWW that is greater than 50% of the state AWW
  • Maximum weekly benefit:90% of state AWW
  • Exception:for benefits beginning before 1/1/2025, the maximum benefit will be $1,100 per week

§8-13.3-416(1)

§8-13.3-406

Employee Eligibility

“Covered Individual” means any person who:

  • Earned at least $2500 in wages subject to premiums during the base period OR
  • Elects coverage for a minimum of 3 years (e.g., self-employed, sole proprietor, independent contractor, employees of local governments that have opted out of coverage, etc.)

NOTE: We use the term “employee” throughout this article

§8-13.3-403(3) §8-13.3-414

“Base Period”

  • Base period: first 4 of the last 5 completed calendar quarters immediately preceding the first day of the individual's benefit year
  • Alternative base period:last 4 completed calendar quarters immediately preceding the benefit year

NOTE: Benefit year is not defined; probably should refer to Application Year – see below

§8-70-103(1.5) and (2)

Covered Employers

  • Private employers:
    • With 1 or more employees during 20 weeks in the current or prior calendar year; or
    • Who paid wages of $1,500 or more during any quarter in the prior calendar year
  • The state and political subdivisions
  • The federal government is excluded

§8-13.3-403(8)

Local Government Opt-out

  • Local governments may opt out of CO PFML coverage
  • “Local government” means any county, city and county, city, or town, school district, special district, authority, or other political subdivision of the state

§8-13.3-422

§29-1-204.5(3)(b)

Total Leave Entitlement

  • 12 weeks in an Application Year
  • Additional 4 weeks for a serious health condition related to pregnancy complications or childbirth complications

§8-13.3-405(1)

Waiting Period

None

 

Leave Reasons

  • Employee’s serious health condition
  • Caring for a family member with a serious health condition
  • Bonding with a new child during the first year after birth, adoption, or placement
  • Qualifying military exigency
  • Safe leave (leaves related to the employee or a family member being a victim of domestic violence, stalking or sexual assault or abuse)

§8-13.3-404

§8-13.3-403(16)

§8-13.3-404(18)

Covered Relationships

  • Child of any age*
  • Parent*
  • Spouse
  • Domestic partner
  • Grandparent*
  • Grandchild*
  • Sibling*
  • Like a family member:Any individual with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship

*NOTE: These relationships include biological, foster, adoptive, step, and in loco parentis relationships and the same relationships to the employee’s spouse or domestic partner, if applicable

§8-13.3-403(11)

 

Leave Year Calculation Methods

Application Year: 12-month period beginning on the first day of the calendar week in which an employee files an application for PFML benefits

§8-13.3-403(1)

Leave Increments

  • 1hour OR
  • Smaller increments if consistent with employer’s increments for other employee leave
  • Benefits not payable until employee accumulates at least 8 hours of PFML usage

§8-13.3-405(3)

Employee Documentation

CO PFML Division will develop claims procedures and forms, including

  • Certification from a health care provider for proof of a serious health condition and
  • Documentation of need for safe leave

§8-13.3-416(2)

Employee Notice to Employer

  • 30 days if leave is foreseeable
  • Such notice as is practicable if leave is not foreseeable or if 30 days is not possible

§8-13.3-405(5)

Employee Notices to Employees

  • CO PFML Division will develop notice materials with details of the CO PFML program for employer use
  • Employers will be required to provide written notice to employees:
    • By posting in the workplace
    • Upon hire
    • Upon learning an employee is experiencing an event that would be covered by CO PFML

§8-13.3-411

Coordination with Other Leaves and Benefits

  • FMLA:CO PFML runs concurrently with federal FMLA, if applicable
  • STD:Employer may require employee to use STD or similar benefits concurrently with CO PFML
  • Accrued paid time off (PTO) (vacation, sick leave, etc.):
    • Employer cannot require employee to use PTO prior to or while receiving CO PFML benefits
    • Employer and employee may agree that an employee can use PTO while receiving CO PFML benefits, up to employee’s AWW

§8-13.3-410

Job & Benefits Protection

  • If employee has been employed with current employer for at least 180 days prior to commencement of PFML leave, restoration after leave to same or equivalent position and terms and conditions of employment
  • Continuation of health care benefits during leave

§8-13.3-409

Employer Reimbursement

Employer can receive reimbursement from state program or private plan insurance carrier for advance payments made by employer equal to or greater than CO PFML benefits

§8-13.3-415

 

Matrix can help!  State by state, the number of paid family and medical leave laws keeps growing.  You don’t have to go it alone!  At Matrix we administer private paid family and/or medical leave and benefits plans in many states, including California, New Jersey, New York, Washington, and the upcoming Massachusetts, Connecticut, and Oregon.  If you would like to learn more about paid family and medical leaves and the benefits of having a private or voluntary plan, contact your Reliance Standard or Matrix account manager with questions or send a message to ping@matrixcos.com, and keep watching this space for more information.

TIME TO GET A GRIP ON CONNECTICUT PAID FAMILY AND MEDICAL LEAVE!

Posted On November 30, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

November 30, 2020

 

Massachusetts PFML isn’t the only law bringing new consequences with the new year. Some parts of Connecticut PFML are also going into effect on January 1, 2021, and if you have even one Connecticut employee, you have things to do. We’ll provide you with a starter list here, but please register to join our CT PFML webinar on Thursday, December 3 at 2:00 Eastern.

If you don’t have Connecticut employees, it still pays to tune in to learn what various states are doing – it may be on your company’s horizon soon!

Connecticut Family and Medical Leave is coming faster than you think. Join us Thursday December 3rd @ 2pm EST for an overview of what we know and what comes next. Register here!

For Connecticut employers, here’s what you need to do now:

  1. Register your business with the Connecticut Paid Family and Medical Leave Insurance Authority (the Authority) The Authority is charged with developing and administering the CT PFML program. All employers with one or more Connecticut employee must register by December 31, 2020, to ensure receipt of important information from the Authority as issued.

    Determine who in your organization will be responsible for completing the registration process and setting up your employer account on the Authority’s website. That individual will need to supply the following information during registration:
    • Federal Employer Identification Number (FEIN)
    • Number of Connecticut employees
    • Total annual payroll for Connecticut employees
    • Payroll frequency
    • Intention to apply for an exemption (private plan)
    • How your business will remit payments on behalf of employees
    Note: Prior to registering with the Authority, be sure your business has established a state identity at https://stg.login.ct.gov/ctidentity/registration.
  2. Consider whether you want a private plan. Although you can file for approval of a CT PFML private plan at any time, there is a financial incentive to act soon. Employers with plans provisionally approved by March 31, 2021, will not have to pay the employee PFML contribution of 0.5% to the Authority for Q1 2021 but can either waive that cost for employees or use the employee contributions to fund the private plan. The process for approval of a private plan requires an affirmative vote by the majority of your Connecticut employees and other steps that will take time, so it’s best to get started right away. NOTE: The provisional private plan approval date to avoid paying employee contributions to the Authority for Q1 2021 was originally March 1, 2021, but has been changed in Authority communications to March 31, 2021.
  3. Get ready to withhold employee payroll deductions. Some employers elect to cover the costs of a state PFML program themselves. However, in Connecticut, if the employer is using the state plan the employer cannot cover the employees' contributions and must withhold the 0.5% contribution from employee paychecks. Employers with private plans may elect to cover the employee costs but you may not know if you have a provisionally approved private plan until after January 1, 2021. So, consider planning to withhold from employee paychecks starting January 1 and either refund the employee contributions if your plan is approved, or use those contributions to date toward plan costs and cease withholdings going forward. If you know your company is going to have the employees pay their statutory share, get ready to start withholding employee payroll contributions as of January 1, 2021.

MATRIX CAN HELP!

We are experts on all state PFML programs. If you need help in any state contact your Matrix or Reliance Standard account manager. And if you can’t make it to the CT PFML webinar on December 3, watch this space for timely updates and contact your Matrix or Reliance Standard account manager or ping us at ping@matrixcos.com to receive the webinar recording when ready.

“TIE-BREAKER” MEDICAL EXAM FOR EMPLOYEE IN A SAFETY SENSITIVE POSITION DOES NOT VIOLATE THE ADA

Posted On November 09, 2020  

by Gail Cohen, Esq. - Senior Director, Employment Law And Compliance

November 09, 2020

 

A new case provides some great information for employers with employees in “safety sensitive” positions and their ability to require a medical exam. That case is Beal v. Muncie Sanitary District, available here.

The Facts


Ronald Beal worked in a Maintenance role for the Muncie Sanitary District.  His job required him to drive a District-provided vehicle over public roads to monitor equipment and operate heavy machinery.  One day, while on duty, Beal backed a District vehicle into a flower planter at a local shop. The accident did not cause any injuries or property damage, but consistent with District policy, Beal was required by his supervisor to submit to a drug test.  The test revealed the presence of a number of concerning substances, including opiates and oxycodone.  The testing lab, in providing the results to the District, warned of “possible safety issues and a quite serious liability issue in the event of an accident.” Upon receipt of the results, the District removed all “safety-sensitive” job duties from Beal’s role and reprimanded him for not complying with its policy requiring him to supply the District with a written form identifying any potentially dangerous prescriptions he was taking.

Beal’s doctor confirmed the medications he prescribed and was of the opinion that those prescriptions did not interfere with his ability to perform safety sensitive work.  The District asked its Medical Review Officer (“MRO”) for her opinion, which was, not surprisingly that unless Beal’s doctor changed his dosage and ensured these medications were not taken within eight hours of his scheduled shift, she could not clear him to return to work.   Beal’s doctor rejected the MRO’s suggestions about changing Mr. Beal’s dosage.  The District did not give up.  They then asked Beal’s doctor to clarify which duties he could perform under his current dosage, and astonishingly the doctor said he could safely perform all of them.  As a result, the District had an impasse and proposed to Beal that he agree to see a third party health care provider and sign a release so that individual could review his medical records.  When he refused to do so, he was suspended without pay and given an ultimatum: participate in the exam and sign the medical release, or lose your job.  Beal declined to agree and was fired for insubordination.  He sued the District, claiming that its requirement that he participate in a medical exam with a third party provider violated the ADA.

How the District Won

The ADA has specific limits on when an employer can require an employee to submit to a medical exam; namely, the exam must be job-related and consistent with business necessity.  One way for employers to meet these criteria is by showing that the employer has a reasonable belief, based on objective evidence, that the employee’s medical condition would impair his ability to perform the essential functions of his job.  The court agreed that without the safety sensitive duties the District temporarily removed from Beal’s job, his position was “diluted beyond recognition.” There was ample support that the drugs Beal’s physician prescribed could impair his ability to perform his job functions, so, when he was asked to submit to the medical exam, the District was found to have complied with the ADA’s requirements for medical exams. 

Though the District didn’t submit this argument, the court further pointed out that an employer can ask an employee to submit to a medical exam when there is objective evidence that his or her condition poses a threat to health and safety.  In this instance, the evidence showed that Beal’s use of prescription opiates and other medications posed a threat to himself, co-workers, and the general public.  The court found that, under the circumstances, the District was not only warranted in requiring the third party exam, but was actually obligated to require Beal to submit to it.

Pings for Employers:

The District did a lot of things right, including:

  • Having a detailed job description from which the court could easily conclude that Beal’s position involved safety sensitive duties;
  • Having a policy that required the employee to come forward if he takes any medications that could impair or otherwise impact job performance.This is something a private employer, however, should think very carefully about before requiring, as it will be the rare position indeed that would warrant such scrutiny.
  • Having a policy that required drug testing in the event of a work-related accident and methods to objectively administer that testing with a third party provider.
  • Using an internal resource – in this instance a Medical Review Officer – who was familiar with the job duties and the medications at issue.The MRO helped a lot. She helped devise ways to work with Beal’s doctor to see if there were ways to accommodate his use of the prescribed medications and still perform his job.
  • The third party medical exam really was a last resort. This employer worked hard to be thoughtful and find ways to work with Beal and his provider. The court gave the District lots of credit for that and ultimately concluded that Beal’s recalcitrance demonstrated a failure to engage in the interactive process.
MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like obtaining appropriate medical information to assess an employee’s ADA situation.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, contact your Matrix or Reliance Standard account manager, or send an email to ping@matrixcos.com.

COVID 19 AND ADA LEAVES OF ABSENCE

Posted On November 02, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

November 02, 2020

 

In the best of times employers struggle with employee requests for leave of absence as an ADA accommodation.  The incursion of COVID-19 has amplified the challenges.  But, the ADA is still the ADA and leave of absence continues to be an accommodation employers must consider if requested by an employee with a disability – in fact, now more so than ever. 

We have previously written about ADA and leaves of absence, particularly with respect to the duration of such leaves, here and here. Now let’s look at special issues when COVID is involved.  Sadly, there is nothing humorous about this topic so don’t expect the levity I often try to inject into our blog posts.

Not Much Court Guidance - Yet

Although many lawsuits relating to COVID issues have been filed, very few involving ADA claims have progressed to the point of a written judicial opinion and, as of this writing, none address a request for leave of absence as a reasonable accommodation.  A small number of courts have recognized that during the COVID-19 pandemic, whether a plaintiff has a disability should be judged by the totality of the circumstances, including the heightened risks of an impairment caused by the pandemic.  See Peeples v. Clinical Support Options, Inc. (D.Mass. 09/16/2020); Silver v. City of Alexandria (W.D. La. 07/06/2020); and Valentine v. Collier (S.D.Tex. 07/02/2020).

What the EEOC Says You Should Know

At this time, the best resource available for understanding COVID and the ADA is the EEOC’s Technical Assistance Questions and Answers, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“EEOC, What You Should Know”).  Here is some guidance regarding leaves of absence from that document.    

Confidentiality.  If an employee is on a COVID-related leave of absence, you cannot disclose the reason for the leave, just the fact that the individual is on leave.  EEOC, What You Should Know at B.7.  (Of course, this applies to the reason for any ADA accommodation or medical absence from work.)

Assessing the Length of a COVID Leave of Absence Accommodation.  COVID itself may or may not be a disability, depending on the length and severity of the employee’s illness.  The ADA regulations provide that you must consider the condition under which the individual performs the major life activity; the manner in which the individual performs the major life activity; and/or the duration of time it takes the individual to perform the major life activity to determine whether the employee’s condition substantially limits a major life activity.  29 C.F.R. § 1630.2(j)(4).  So, engage in the usual ADA inquiries and get medical documentation to determine whether the employee’s COVID-19 is a disability and, if so, what accommodations are appropriate.

A difficulty presented by COVID is that, at the outset of an infection or even as it progresses, the employee’s provider may not be able to predict how long the employee will be incapacitated by the disease.  Some cases are mild or even asymptomatic, which would clearly not be a disability and any absences should be dealt with through the employer’s regular attendance, paid sick leave, other time off policies, and state and federal laws such as the FMLA, if applicable.

Some individuals, on the other hand, remain ill and incapacitated by COVID for extended periods, referred to as the “long haulers.”  At some point continued leave may no longer be a reasonable accommodation or may impose an undue hardship.  Not surprisingly, this determination needs to be made on a case-by-case basis.  The employer does have in its favor the principle that an indefinite leave of absence with no reasonably certain end date or range is not a reasonable accommodation.  Be cautious (and generous, if possible) before taking action that might make it a COVID-19 test case for failure to accommodate.

Leave as a Temporary Accommodation.  Given the pandemic and all the new considerations that come into play, you may find yourself in a position of having to provide a leave of absence on an emergency or short notice basis.  The EEOC makes clear that employers can do this without the accommodation becoming “permanent.”  You can set employee expectations up front that this is a temporary or trial accommodation and set an end date, subject to further consideration at that time.  This gives the immediate employee the relief he or she needs and allows time to collect additional medical information if needed and to consider other stay-at-work accommodations. 

Moreover, you need not fear that an accommodation granted during COVID may become required on an ongoing basis.  The EEOC recognizes that the pandemic may require some employees to request an accommodation because of a pre-existing disability that puts her at greater risk during this pandemic or because the employee has a disability exacerbated by the pandemic.  This doesn’t mean that you have to continue the accommodation once the COVID-related need no longer exists.  EEOC, What You Should Know at D.7.

High Risk Family Members.   Many employees have someone in their household how has a high risk of COVID complications because of an underlying medical condition.  This is not grounds for leave of absence as an accommodation.  Be aware, however, of the association provision of the ADA, which prohibits discrimination against an employee based on his/her association with an individual with a disability – and “association” extends well beyond just family members to include roommates, friends, teammates, etc.  In the COVID leave context, this means that if an employer allows an employee without a disability to take a leave of absence to avoid exposure to COVID (for example, due to the employee’s simple fear of contracting COVID but without a high-risk factor) you will need to consider allowing the employee associated with someone with a high-risk condition leave of absence on the same terms.  EEOC, What You Should Know at D.13.

Employees with High-Risk Conditions.  The CDC has identified conditions which place an individual at high risk of serious complications if they get COVID-19.  Most of these conditions may also constitute an ADA-protected disability (exceptions being age, normal pregnancies, and in some cases, obesity).  An employee with one of these conditions may never have needed an accommodation at work prior to COVID-19 – for example, an employee with diabetes or high blood pressure that is well controlled with medication.  Now, the risk of severe illness may require you to allow a leave of absence for an individual with a high-risk condition to avoid exposure as an ADA accommodation.

However, as with the ADA under normal conditions, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.  Don’t act out of paternalistic concerns; the ADA does not allow you to exclude the employee—or take any other adverse action—solely because the employee has a high-risk condition. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation – and the threshold to establish a direct threat is very high.  EEOC, What You Should Know at G.3. and 4.

Older Workers and Leave of Absence.  The CDC includes age over 65 as a high-risk condition.  However, the Age Discrimination in Employment Act does not require an employer to provide an accommodation due to age.  Under the ADA you cannot exclude an individual from the workplace based on being 65 or older, even if the employer acts for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.    However, you can provide greater workplace flexibility to older workers who desire it even if that results in younger works being treated less favorably.  Remember, too, that age may bring with it medical conditions that do constitute a disability and the employee may be entitled to an accommodation, possibly including leave of absence, for that reason.  In that case, the employee, as in other cases, must make the need for an accommodation known to the employer.  EEOC, What You Should Know at H.1. and 2. 

Upon Return to Work from a COVID-Related Leave of Absence.  When a worker is ready to return to work following a COVID-related leave of absence, you can require a fitness-for-duty note from the employee’s doctor.  This can include verification that the employee is no longer contagious.  Due to the pandemic’s demands on the health care industry some employees may have difficulty seeing a provider for this purpose so you might want to be flexible in this requirement and the form of verification you will accept.  EEOC, What You Should Know at A.5.

Alternatives to Leave of Absence.  Remember that an employee is not necessarily entitled to a leave of absence if there are other accommodations that will enable him or her to perform the job without jeopardizing the employee’s health or medical treatment.  Where exposure to COVID is the concern, many of the measures you are already taking to provide a safe workplace may serve as an effective and reasonable accommodation – depending on the facts such as the employee’s job duties and the nature of the workplace.  The EEOC suggests:

If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

EEOC, What You Should Know at D.1.

For additional ideas and assistance, check out the resources available from the Job Accommodation Network, see OSHA’s Guidance on Preparing Workplaces for COVID-19, or consult your state or local health agency.

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including assessment of leave of absence requests in the time of COVID.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, contact your Matrix or Reliance Standard account manager, or send an email to ping@matrixcos.com.