As states begin to lift stay-at-home orders and business restrictions, employers should be mindful of the discrimination risks associated with reopening and resuming on-site operations.
Determining who should return, when, and under what terms presents potential risks and pitfalls under federal, state, and local anti-discrimination laws. Any unintended disparate impact on a protected group, particularly a group most affected by Covid-19, could result in triggering a class or collective action.
The best way to avoid such claims is to take the time to create a solid and comprehensive return-to-work plan. The plan should address the recall process and selection criteria, the treatment of vulnerable populations, flexibility for caregivers, and whether and under what circumstances test results should be considered when selecting employees for recall, continued furloughs, or layoffs. Doing so will help employers avoid missteps that could expose them to class or collective discrimination lawsuits.
A return-to-work plan should include a plan for recalling employees who have been furloughed or laid off as a result of the business restrictions imposed in response to Covid-19.
The recall plan should address many of the same considerations addressed when planning for a reduction in force. An effective recall plan should describe the operational goals and identify the job functions and skills sets that are necessary for the business to reopen or increase operations. The recall plan should also set forth the criteria to be used in selecting particular employees for recall.
Selection criteria may include objective criteria (e.g., seniority, location, skill set, documented performance), subjective criteria (e.g., potential for success, leadership skills), or a combination of both. The more objective the criteria, the easier it will be to defend against discrimination claims. The plan should also identify the decision makers who will be tasked with selecting employees for recall, as well as written guidance to be provided to those decisions makers explaining the operational needs, selection criteria, and how to support and document their recall decisions.
The recall plan should also require higher-level decision makers who are responsible for overseeing the recall selection process (i.e., division managers, human resources managers, etc.) to review and possibly revise the preliminary list of employees selected for recall to ensure that the selection criteria were applied fairly and consistently.
In addition, employers should retain counsel to conduct a disparate impact analysis to determine whether the group of individuals selected for recall contains a statistically significant over or under representation of any protected group(s). In the event a particular class is disproportionately impacted, the employer, with the assistance of counsel, should determine whether the selections can be substantiated based on the goals and selection criteria identified in the return-to-work plan.
Looking out for an unintended disparate impact can be key to avoiding a claim for discrimination based on a protected status, such as age, gender, race, or disability.
It is well known that people 65 years and older are at high-risk for severe illness from Covid-19. In fact, New York Gov. Andrew Cuomo (D) issued Matilda’s Law—named after the governor’s mother—to specifically protect the most vulnerable populations in New York, including those individuals who are 70 years and older.
While employers that are thinking of creating return-to-work plans that may avoid initially bringing back older workers may have the best of intentions, they could be placing themselves at risk for claims under the Age Discrimination in Employment Act (ADEA) or state or local laws.
The Equal Employment Opportunity Commission (EEOC) has stated clearly that employers cannot simply exclude older or other employees who may be at a higher risk of complications from Covid-19 from the workplace. Such conduct could violate the ADEA. A wholesale policy that prohibits employees over a certain age from working would be unlawful. Such a policy could be particularly problematic if individuals who are not working are prioritized for layoffs or are otherwise financially impacted (preventing employees from earning pay or benefits or maintaining coverage under insurance programs).
A wholesale requirement for younger individuals to return to work may also be deemed unlawful under state and local laws that prohibit discrimination based on any age over 18 years old. On the other hand, a policy that allows employees who fall within specific vulnerable groups or populations to voluntarily stay home or have priority to telecommute would not be illegal if properly implemented.
Care also must be taken to avoid claims of wide-scale discrimination based on gender or related protected classes, such as pregnancy or parental leave. Plans to exclude pregnant women from the workplace to protect them from Covid-19 could land employers in court for pregnancy discrimination.
As with older workers, employers should be careful when creating return-to-work plans to not automatically exclude pregnant workers and should instead consider offering them alternatives, such as teleworking. While employers may start recalling workers to the workplace, employees may still be balancing childcare responsibilities without viable childcare options. To the extent that childcare responsibilities may fall more heavily on women, this could more substantially impact their ability to return to work, take on the same projects, or travel.
In order to avoid large-scale gender discrimination claims, employers should take care when making decisions about requiring/allowing employees to return to the workplace, furloughing employees, and determining pay. If employers keep these issues in mind and work to avoid actions that may have a negative disparate impact on women or create pay disparities that cannot be justified, they will find themselves in a more defensible position if they face claims.
Employers seldom worry about ADA class actions. This is because the ADA is not normally fertile ground for class claims as most ADA claims turn on facts unique to the employee involved. Nonetheless, as employers fashion return-to-work policies as shelter-in-place orders recede, caution is necessary to avoid policies disproportionately impacting employees with disabilities.
For example, a policy against recalling (or hiring) employees who have a disability that might increase susceptibility to Covid-19 would potentially be problematic. Similarly, a policy of Covid-19 testing of only those with disabilities such as COPD, diabetes, or heart disease would also be suspect. Nor is it likely that an employer could defend policies to try to shield employees with such disabilities and their possible Covid-19 susceptibility from exposure.
A similar defense failed in United Auto. Workers v. Johnson Controls, 499 U.S. 187 (1991), where women capable of conceiving were excluded from areas of a battery manufacturing facility to prevent tetratgenic exposure, which could cause an abnormality following fetal exposure. While Johnson Controls involved a Title VII sex discrimination claim, unless the current pandemic drives a different result, a similar argument likely would be made under the ADA.
A more fundamental issue would be any proposed exclusion of employees who have had Covid-19 or with some antibodies because it is highly likely that Covid-19 will be held to be an ADA-covered disability. And any policy negatively impacting those who were Covid-19 positive or symptomatic or who have antibodies might be challenged as discriminating against those who have a record of a disability or as being regarded as having a disability. Similarly, any policy adversely impacting employees “associated with” a virus-positive person without justifiable reliance on health regulations would be problematic.
While the EEOC has recently issued guidance that return-to-work policies may include testing for current infection and temperature, any other testing should closely track what the Centers for Disease Control and Prevention and state and local health authorities authorize as permissible and appropriate.
Otherwise, employers may be challenged as using medical tests without a business necessity justification and thereby be exposed to ADA class claims. Employers should assure that return-to-work policies and related testing be designed to prevent ADA class claims—despite the rarity of such claims.
As businesses arrange to reopen, employers that create and follow thoughtful and well-supported return-to-work plans will be more likely to demonstrate that their recall decisions were legitimate and fair and less likely to face class or collective actions alleging discrimination based on age, gender, disability, or another protected status.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Denise Dadika is a member of the firm in the Employment, Labor & Workforce Management practice at Epstein Becker Green and co-chair of the firm’s Health Employment and Labor strategic industry group.
Frank C. Morris Jr., is a member of the firm in the Litigation, Employee Benefits & Executive Compensation, and Employment, Labor & Workforce Management practices of Epstein Becker Green and co-chairs the firm’s ADA and Public Accommodations Group.
Lauri F. Rasnick is a member of the firm in the Employment, Labor & Workforce Management practice at Epstein Becker Green where she co-chairs the Anti-Harassment & Pay Equity service group.