How To Handle Return To Work Accommodations For Stress and Anxiety
Managing COVID-19 issues in the workplace remains a continuing problem for employers who are still trying to return employees back to work after working remotely during the pandemic. Without question, many employees suffer from stress and anxiety due to the pandemic and are still fearful to report back to the office. Here are four things you need to know when an employee requests to continue working remotely due to stress and anxiety:
1. Are employees protected under the Americans with Disabilities Act (ADA) and state equal employment opportunity laws if they experience stress and anxiety due to COVID-19?
Nearly all of us have experienced stress due to COVID-19. However, certain employees may have been more seriously impacted during the pandemic due to the loss of a loved one or concerns about exposing high-risk family members to the virus. Stress and anxiety from COVID-19 can rise to the level of a disability under the ADA. It is always recommended to obtain a medical certification from a health care provider confirming the legitimacy of the employee’s stress and anxiety and need for an accommodation under the ADA.
2. Can you require an employee with stress and anxiety to return to the workplace?
Although many employers have made it easy for individuals to work from home during the COVID-19 pandemic, they are not required to continue these arrangements. Thus, even if an individual suffers from a disability due to stress and anxiety, the employer may require the individual to return to work after engaging in the interactive process.
3. Can I ask the employee about their stress, fear, and anxiety during the interactive process?
If an employee obtains a medical certification confirming the employee’s disability, an employer should generally not engage further in medical inquiries. However, an employer can inquire about medical or self-imposed restrictions due to the employee’s COVID-related stress and anxiety. For example:
- Does the employee leave their home? How often? Does the employee wear a mask when they leave their home?
- Does the employee spend time with family and others not living in their household? How often? What precautions are followed, if any?
- Does the employee go to public places such as the grocery store, shopping areas, restaurants, schools, or attend child activities?
- Does the employee drive in a vehicle? With others?
- Has the employee traveled over the last year? Where? Did the employee travel by public transportation?
These inquiries are generally permissible under the ADA to evaluate potential accommodations and what measures are reasonable and acceptable in connection when returning to work.
4. What other questions should be asked during the interactive process to address concerns about workplace health and safety?
During the interactive process, the employer should also have an open discussion with the employee about their specific concerns when returning to work. For example:
- Identify any specific working conditions or job duties that trigger concerns.
- What accommodations can be provided by the company to alleviate these concerns so the employee can return to work (i.e., PPE, social distancing, restricting in-person meetings)?
- How will the proposed accommodations assist him/her in performing their essential job duties?
- Engage in a discussion regarding the daily duties and responsibilities for the job and the measures the company can implement to minimize exposure to other workers or working conditions that cause concerns.
Bottom Line: If you can implement reasonable measures to address concerns regarding potential exposure, you should be in a position to require the employee to return to work. Under the ADA, an employer is not required to accept an employee’s preferred accommodation (i.e., being allowed to continue working at home). Rather, the Company can exercise its discretion and adopt reasonable accommodations to resolve the issue (i.e., implement measures to allow the employee to safely return to work).
Working through the interactive process and reasonable accommodations can be difficult and create liability exposure for an employer. Our Labor and Employment Group can assist you in navigating through these difficult issues.
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