By Dan Gephart, May 20, 2020

While the nation’s slow re-opening is being welcomed by struggling small businesses and Americans eager for a return to normalcy, it is also being met with hesitation and fear by many employees who will soon be making their way back to the workplaces they last occupied several weeks ago.

They are not the only ones who are hesitant. You probably are too. And you should be. Bringing teleworkers back to the physical workplace amid a pandemic will not be easy. Agency HR/EEO professionals, attorneys, supervisors, and managers play important roles in ensuring that their agencies follow the appropriate guidelines, comply with laws involving leave and reasonable accommodation, and meet their burden for providing a safe workspace.

Last month, we looked at the rise in virus-related discrimination and harassment against Asian Americans and Pacific Islanders. That is an ongoing problem, as EEOC Chair Janet Dhillon alluded to in a recent message sharing her concerns about race and national origin discrimination.

“Amidst the challenges we are all facing during these uncertain times, the anti-discrimination laws the EEOC enforces are as vital as ever,” Dhillon wrote. “The EEOC is rising to the challenges before us, continuing our mission of advancing equal employment in the workplace and enforcing our anti-discrimination laws.  The EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior.  Our collective efforts to create respectful workplaces for all our nation’s workers, even during these trying times, will enable us to emerge from this crisis stronger and more united.”

If you caught Katherine Atkinson’s insightful and engaging virtual training EEO Challenges in the COVID-19 World last week, you are now aware of the numerous EEO challenges you’ll soon face, if you haven’t already. (If you missed the training, no worries: Katie will be presenting it again on June 30. Register here. And then scoot on over to here to register for Federal Workplace Challenges in a COVID-19 World on June 10, where we’ll cover leave, whistleblowing, mental health crises, reasonable accommodation, and much more.)

This month, we offer three bits of advice as you prepare for the eventual return of employees, the first two of which will be covered extensively in EEO Challenges in the COVID-19 World on June 30.

Beware of the potential liability of making age a factor in employment decisions.

The evidence is clear, and it’s been repeated ad nauseum by everyone from the CDC to the President to your neighbor: The older population, specifically those 65 years old or older, are at a heightened risk for contracting the coronavirus.

So what do you do with that information? Here’s what you can do: Recognize the risks to all of your employees, particularly those most vulnerable, as you facilitate the safe and healthy return to the workplace.

Here’s what you can’t do: Take an employment action against an employee because of his/her age and not for a legitimate, nondiscriminatory reason. Avoid any statements or actions that indicate an age-related bias.

Does that mean you can’t forbid your older employees from returning to the physical workplace? This is where the waters get murky. Such a decision appears discriminatory on its face, but there may be some legal wiggle room because of the importance of health and safety of workers and the fact that this virus disproportionately impacts older individuals. Your best bet is to stay current with guidance out of the EEOC, CDC, White House, OPM, and OMB.

Meanwhile, keep an eye out that you, supervisors, or coworkers do not create a hostile work environment for employees based on their age, or their perceived vulnerability.

Brush up on the Americans with Disabilities Act, and include COVID-19 in your analysis.

As Katie explains during the virtual training EEO Challenges in the COVID-19 World, the ADA is relevant to the current pandemic in at least three significant ways.

  1. It regulates employers’ inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. In pre-pandemic times, it would have been unlawful for agencies to take employees’ temperatures at work. Not now, though. Not only can agencies take employees’ temperatures, but they can also administer COVID-19 tests, because COVID-19 is currently a direct threat.
  2. It prohibits covered employers from discriminating against individuals with disabilities or excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat. And since March 2020, a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace.  The most recent CDC and public health authorities’ assessment provides the objective evidence needed to deem COVID-19 a direct threat.
  3. It requires reasonable accommodations for qualified individuals with disabilities during a pandemic. Employees with COVID-19 are not entitled to reasonable accommodation solely by virtue of having the disease. Does that mean you should dismiss the thought of accommodating an employee recovering from COVID-19 or at risk for COVID-19? Consider an employee with an underlying respiratory condition: You should follow the usual analysis for determining if the employee is a qualified individual with a disability.

Effectively communicate changes and policies with your employees.

Do you remember labor-management partnerships? Regardless of your opinion on this Clinton-era concept, you have to admit: A strong working relationship between unions and management would be especially helpful these days.

Some of the changes to the physical workplace over the next year could be substantial, particularly until a vaccine arrives on the scene. Tightly filled open workspaces are likely a thing of the past. Some private-sector employees are installing clear acrylic safety shields (think sneeze guards) between employee cubicles. We can likely expect more environment-altering innovations.

How will that play out in the federal workspace? Agencies and unions have waged battles over inches of space in an office. Think of how these new workplace layouts and innovations will go over with union reps. And what will bargaining unit employees think of new restrictions such as mask requirements or enforced social distancing requirements? How can any of the sudden and dramatic workplace changes be implemented in a way that makes everyone comfortable and limits labor clashes?

Few contracts address any of the specific changes we’re going to see implemented. However, as FELTG instructor Joe Schimansky reminded me last week, most contracts include the statutory right for agencies to take whatever actions may be necessary to carry out their missions during emergencies. Joe will undoubtedly be covering these challenges when he presents FLRA Law Week with fellow FELTG instructor Ann Boehm August 3-7.

We’re entering uncharted waters, and there’s only one thing we know for certain: Effective communication is the starting point. As always, FELTG has you covered: Join Dr. Anthony Marchese on August 19-20, 2020 for the virtual training program Effectively Managing and Communicating With Federal Employees. Good luck out there. [email protected]

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