Man in wheelchair with caregiver

On April 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) conducted a hearing to discuss what it referred to as the “civil rights crisis” impacting the workplace as a result of the COVID-19 pandemic. ReedGroup tuned in to listen to several experts’ testimony covering a range of employment discrimination issues related to the pandemics.

As the EEOC pointed out, and several panelists testified to, the pandemic has disproportionately affected certain populations, including people of color, caregivers, women, older workers, people of faith, and employees with disabilities.

As a leave of absence and disability claims administrator, ReedGroup is especially interested in how the EEOC might assist employers and business leaders in addressing discrimination against workers with disabilities. These employees represent a large portion of our claim administration, and we don’t anticipate disability claims or accommodation requests to decline anytime soon. Employers and leave and accommodation administrators alike would benefit from EEOC guidance that specifically addresses these discrimination concerns.

How can employers reduce the impacts of the pandemic?

The EEOC asked the panelists how it could best help mitigate the effects of the pandemic on the workplace, and there were several suggestions, some more specific than others, including:

  • Ensure employers provide reasonable accommodations.
  • Help employers realize when certain actions, such as denying remote-work accommodation requests, laying off employees, etc., could be perceived as retaliation.
  • Consider the “caregiver crisis” when advising employers and publishing guidance.
  • Remember that stereotypes about caregiving can lead to disparate impact on certain populations.
  • Encourage employers to be proactive by establishing a framework that prevents unlawful discrimination.
  • Update and publish written guidance addressing the above concerns.

The EEOC will no doubt need some time to contemplate panelists’ testimony and suggestions and hopefully develop written guidance that could help employers and employees navigate the increasingly complicated workplace. In the meantime, ReedGroup has brainstormed and developed suggestions for employers who want to be proactive in lessening both COVID fallout as well as the potential impact of a future health emergency:

  1. Review & update policies

The EEOC sagely pointed out that some employer policies aren’t currently designed to retain employees with disabilities, nor do they cover the depth of information that is needed to consistently and fairly administer leaves of absence and accommodations to their workforce. With that in mind, we encourage business leaders to review and update their current suite of policies and plans. Consider whether those policies cover leave situations specific to COVID or other public health emergencies. For example, do those policies address workplace and remote work accommodations? Do they include language regarding leave to quarantine or isolate due to exposure to a contagious disease or leave to receive a vaccine or recover from a vaccine reaction? If not, now is the time to consider revising those policies and plans to account for those scenarios.

  1. Consider caregiving leave

Employers should pay special attention to policies and plans that address (or don’t address) leave for caregivers. The pandemic has forced caregiving leave to the forefront, highlighting some of the issues that exist with some current policies. For example, one panelist pointed out that employer policies sometimes have a disparate impact on women because they assume “traditional” gender roles. Employers should keep this in mind when drafting policies that address leave to bond with a new child or care for a seriously ill family member. In addition, as paid family and medical leave becomes a reality in more states and continues to be discussed at a federal level, employers should think about how their existing policies would interact with such statutory leave requirements.

  1. Maintain comprehensive documentation regarding role descriptions

Role descriptions that accurately outline a position’s responsibilities are critical to effectively managing leaves and accommodation. The pandemic has given rise to a large population of remote workers, which brings with it many questions. Employers should expect more employees to request–and even expect–remote work accommodations. In some cases, those accommodations might be warranted; however, it’s also possible that even though a particular employee was able to work remotely during the pandemic, that accommodation might not be reasonable once it’s safe to resume working in person.

Employers may be asking, “how do we know when we should accommodate a remote-work request or when doing so could be considered unreasonable?” At least part of the answer lies in the employers’ documentation regarding role descriptions, particularly essential job functions. Without an established list of essential job functions, including whether in-person attendance is necessary for the role, it can become very difficult to determine whether an employee’s request to work remotely is reasonable.

  1. Engage in the interactive process

Ensure that accommodation requests are managed through the interactive process. Much of what we have suggested above, such as documented policies and role descriptions that include essential job functions, will help employers as they endeavor to administer leave and accommodations consistently across their workforce.

  1. Train managers and human resources staff

Employers should ensure that their managerial and HR employees are thoroughly trained to identify and avoid potential unlawful discrimination issues, including knowing when and how to engage in the interactive process. Staff should be fully aware of available leave and accommodation options that exist for their employees with disabilities. Not only should employers ensure their staff is well-versed in implementing and enforcing internal policies, but they should also train their employees to understand federal, state, and local leave requirements.

What ReedGroup is doing

ReedGroup continuously tracks and analyzes current and pending leave and accommodation legislation to determine potential impacts to our customers. In addition, ReedGroup monitors guidance from agencies such as the Department of Labor and EEOC and incorporates that guidance into our administration when appropriate.

If you’re looking for assistance managing leave of absence or accommodations or to ensure compliance across your organization, ReedGroup has solutions for you. Review our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.