Employers: Plan Accordingly As Your Workforce Returns

As the Vaccine Rollout Gains Steam and Employers Begin Returning Remote Workers to the Workplace, Reasonable Accommodation Requirements Remain a Concern.

As we anxiously await expanded access to the COVID-19 vaccines, employers who decide to begin returning their remote workforce to the workplace before vaccination is widespread must remember their ongoing duty to provide reasonable accommodations to employees with disabilities who may be more susceptible to contracting a severe case of COVID-19.  According to the Centers for Disease Control and Prevention, adults of any age with the following conditions are at increased risk of severe illness from the virus that causes COVID-19:

• Cancer
• Chronic kidney disease
• COPD (chronic obstructive pulmonary disease)
• Down syndrome
• Heart conditions, such as heart failure, coronary artery disease or cardiomyopathies
• Immunocompromised state (weakened immune system) from solid organ transplant
• Obesity
• Pregnancy
• Sickle cell disease
• Smoking
• Type-2 diabetes mellitus.

This list, however, is not exhaustive.  A recent case from another jurisdiction shows how employers can get tripped up by the reasonable accommodation requirement.

In Peeples v. Clinical Support Options, Inc., No. 3:20-CV-30144-KAR, 2020 WL 5542719 (D. Mass. Sept. 16, 2020), Gabriel Peeples, a managerial employee with moderate asthma, sued the employer to preclude termination of employment after the employer refused to let Peeples continue teleworking, which Peeples’ doctor recommended to avoid exposure to the novel coronavirus that causes COVID-19.  Peeples claimed this refusal to provide a reasonable accommodation violated the American with Disabilities Act (ADA) and its Massachusetts state law counterpart.  Though the employer had previously allowed Peeples to work remotely, where Peeples continued to perform the essential functions of the job, it denied the request for continued telework purportedly because the company was no longer permitting managers to work remotely.  The employee interpreted the employer’s response to mean it would terminate Peeples’ employment if Peeples refused to return to in-person work.

The Massachusetts District Court granted Peeples’ request for a preliminary injunction, finding Peeples was likely to succeed on the merits of a failure to accommodate claim and that telework was a reasonable accommodation.  As part of its analysis, the court looked to recent decisions in other circuits in which courts held 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.

While the end of the pandemic is (hopefully) in sight, employers should continue to exercise caution, discretion, and flexibility in returning their workforce to the workplace.

For more information please contact a member of Dunn Carney’s Employment Law Team.