By MacKenzie Johnson, Jeselskis Brinkerhoff and Joseph LLC
Employees have largely worked from home since the early spring of 2020. However, with the development of COVID-19 vaccines and some light at the end of the pandemic tunnel, employees who have been working from home are beginning to venture back into the workplace. While many employers allowed their employees to work from home or to have modified work schedules for most of 2020, these same employers are now requiring or expecting their employees to be physically present in the workplace for their normal work schedules. This change is likely to cause employers to deal with an uptick of workplace safety concerns, worker’s compensation claims and reasonable accommodation requests under the Americans with Disabilities Act (ADA).
Employees who believe they may have been harmed or discriminated against due to COVID-19 related issues at their workplace are beginning to file lawsuits, file worker’s compensation claims and engage in the interactive process to seek reasonable accommodations under the ADA. In 2020, COVID-19 led employees to file more than 1,000 employment related lawsuits nationwide. These COVID-19 related lawsuits ranged from workplace safety to age discrimination.
Regarding workplace safety, the Occupational Safety and Health Administration (OSHA) requires employers to have a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. COVID-19 could be considered this type of hazard and employers should take the necessary steps to help ensure the safety of the employees who are or will be required to return to the workplace. Employers are prohibited from retaliating against employees for complaining about workplace safety concerns. As of January 14, 2021, OSHA received more than 12,642 federal complaints and 42,083 state complaints related to COVID-19 precautions. This triggered more than 60,000 workers being removed from hazardous conditions relating to COVID-19.
Indiana requires most employers to have worker’s compensation coverage that provides no-fault, employer-paid insurance for work-related injuries and illnesses. Indiana does not typically recognize COVID-19 as a work-related illness, thus these types of claims are reviewed on a case-by-case basis. These types of worker’s compensation claims will be denied if there is not sufficient evidence to show that an employee’s COVID-19 diagnosis arose out of and was contracted in the course of their employment. Therefore, employees will have to prove that the only place they could have contracted COVID-19 was is the workplace.
COVID-19 has also prompted and will likely continue to prompt employees to initiate the interactive process in order to receive reasonable accommodations under the ADA. Many employees are requesting to continue to work from home or “telework” as a reasonable accommodation either because they do not want to risk exposure to COVID-19 by returning to the workplace, or their health care provider has recommended they continue working from home due to various health conditions.
The ADA defines “reasonable accommodation” as one that allows an employee to perform “essential job functions” while not causing an “undue hardship” to the employer. Undue hardship is categorized as a “significant delay or expense.” Employers may have a more difficult time arguing that employees are not able to perform their essential job functions at home because, for the last ten months, employees have been performing their essential job functions while working from home. However, this does not mean that an employer must offer teleworking as a reasonable accommodation. The employer and employee must still engage in the interactive process to explore potential accommodations that will allow the employee to perform essential job functions while also not creating an undue hardship for the employer.
Additionally, the Equal Employment Opportunity Commission (EEOC) has stated that “the fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of keeping them safe from COVID-19, or otherwise chose to permit telework, does not mean that  the employer permanently changed the job’s essential functions;  telework was always a feasible accommodation; or  that it does not pose an undue hardship.” Thus, any reasonable accommodation that calls for teleworking must follow the ADA guidelines regardless of what was done at the start of the pandemic and it must not cause an undue hardship to the employer. Employers should also consider updating job descriptions to document the need for employees to be physically present in the workplace along with the rationale for that need.
In closing, Indiana employers should review OSHA guidelines, the CDC’s prevention website and Back on Track Indiana to safely prepare businesses for employees to return to the workplace.
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