COVER STORY The ADA legal coin has an obverse


side. “Some employers may decide to keep people with underlying condi- tions, the at-risk folks, out of the office,” says Gregg. “The fear is that if they come back they will be more sus- ceptible to catching the virus with a more serious result.” Yet excluding at-risk people can


be tricky. “Who is at risk?” poses Gregg. “Anyone over the age of 60. So, the employer is tempted to say, ‘Older people cannot come back.’ Well, that means they cannot earn money and that can create an age discrimination issue.” The decision to exclude people from


a back-to-work program must be based on more than a stereotypical presump- tion, says Gregg. The ADA’s “direct threat standard” states that employers can exclude workers only when there is actual evidence that they pose direct threats to themselves or others, per- haps because they have told the employer they have an underlying con- dition, or they have a relevant symptom. The need for a direct threat


extends to a requirement for a medical examination. “The employer cannot send someone to the doctor to validate that they are okay to come back to work if that same requirement was not made for everyone else,” says Gregg. “There needs to be more than a perception of a disability to send a person to the doctor.” Attorneys caution that pay equiva-


lency is not a defense against discrimi- nation in these cases. “Even if the salary would be the same, the individ- ual made to stay at home may lose out on valuable perks of actually working at the office,” says Gregg. “These might include client contacts, import- ant sales meetings, or just generally being ‘in the know.’ They might even miss out on promotions: If you are not seen, you are not considered. So if you pick and choose who stays home, you have to be careful about picking some people and not others.” The above considerations apply to employers of all sizes: While the ADA


FIRST QUARTER 2023


only covers businesses with 15 or more workers, most states have simi- lar laws for smaller organizations.


Worker Complaints As careful as an employer may be in designing a safe and effective back- to-work program, it’s likely that not everyone will be pleased. “Employers should put mecha-


nisms in place to deal with com- plaints about working conditions, including practices such as social distancing to ensure the safety of the work environment,” says Evans. “Some employees may feel the employer has not gone far enough or has not enforced the rules appro- priately. Employers need to be ready to make necessary changes and ensure there is no retaliation against people who file complaints. This is important from the stand- point of both employee relations and whistleblower laws.” Managers and supervisors, too,


should receive special training on the new workplace rules and how to respond if anyone complains about them or refuses to cooperate. A point person can help. “One way to minimize risks is to establish a reopening coordinator who under- stands all of the moving parts of a back-to-work program,” says Evans. “It’s good to have someone who makes sure people understand the rules and their responsibilities.”


A Positive Tone Creating a safe workplace is one thing. Building the trust of employ- ees is another. People must under- stand that everything possible has been done to protect their health and safety. “Transparent communication is


critical right now,” says Hagaman. “Employers need to prevent confu- sion among their teams by answer- ing their questions before they re-enter the workplace.” Hagaman suggests addressing these questions: How will you


assess the health of your employ- ees prior to walking into the build- ing? Where will your employees find supplies such as face masks and sanitizing wipes? What parts of their workspace will be closed? Will con- ference rooms and cafeterias remain open? And who will be allowed in the building, and when? Not the least of challenges is that


of communicating the panoply of new procedures to employees who may feel overwhelmed by a long list of to-dos and do-nots. Some employers are sending email broadcasts with answers to such questions. Others are posting informative signs in the workplaces. And others are packing personal protective gear into “goody bags” and handing them out to returning employees. All such steps can calm fears.


And given the negative emotions that have surrounded the COVID-19 outbreak, employers should try to present their communications in a forward-looking spirit. “As people start re-entering the workplace, employers might create a return-to- work rally with a positive tone, applauding the performance of the staff in light of everything that has happened,” says Avdoian. “And as things move forward, one way to encourage good morale is to ask for volunteers to serve on a commit- tee that addresses staff concerns.” The pandemic itself might present


businesses with the opportunity to retool their operations, finding ways to work more productively and uti- lize technology more efficiently. “We should create new policies and pro- cedures in response to the pan- demic as we do when faced with any obstacle or challenge in the business world,” says Avdoian. “We are always looking for ways to enhance our services. This is another opportunity to do so.”


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