COVID-19 outbreak. “Employers may be subject to retaliation claims when employees are terminated or otherwise subject to adverse employment actions after they have taken sick leave, a leave of absence under the Family and Medical Leave Act (FMLA), or under a COVID-19-specific law such as the Families First Coronavirus Response Act (FFCRA),” says Sholinsky.


Accommodating Disabilities The Americans With Disabilities Act (ADA) and equivalent state and local laws create an especially hazardous legal terrain. An employer should not


10 Self-Storage NOW!


deny a request to work from home if that arrangement would be a reason- able accommodation for a COVID-19 related disability. “There may be a charge that the employee should have been allowed to work remotely if that individual has a compromised immune system or a condition iden- tified by the CDC as one that would make the employee more vulnerable to being sickened by COVID-19,” says Sholinsky. Ironically, the prevalence of remote


work arrangements in recent months may have weakened employers’ tradi- tional legal defenses in this area.


“Given that employers allowed people to work from home for so long during the pandemic, it may be much more difficult to claim undue hardship as a basis for denying a request to do the same as an accommodation under the ADA,” says Gregg. It may be wise now to record any


inefficiencies that have arisen from recent work-from-home activity. “Waiting to document difficulties until after a request for continuing home- based work is made will seem like an after-the-fact justification,” says Gregg. “That carries much less weight with investigators or courts.”


FIRST QUARTER 2023


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