Coronavirus FAQs Part 2: Employment Practices

Updated August 2021

As schools continue to face short- and long-term challenges from COVID-19, United Educators (UE) is here to help. The following are UE’s answers to some of the most pressing member questions regarding employment practices associated with COVID-19.

Remote Operations

An employee who doesn’t get vaccinated due to a disability (covered by the Americans with Disabilities Act (ADA)) or a sincerely held religious belief, practice, or observance (covered by Title VII of the Civil Rights Act (Title VII)) may be entitled to a reasonable accommodation (to include telework or other accommodations) if it doesn’t pose an undue hardship on the operation of the employer’s business. Similarly, employees who aren’t vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working if the employer makes modifications or exceptions for other employees.

Other employees may be vaccinated but still request accommodations due to concerns about COVID-19 due to underlying health conditions. When an employee asks for an accommodation, whether the employee is fully vaccinated or not, your institution should engage in an interactive process to determine if there is a disability-related need for a reasonable accommodation. Even if your institution doesn’t have a teleworking program ─ or the employee isn’t eligible for your specific program ─ you still may have to permit remote work as an accommodation. The answer depends primarily on whether alternative accommodations effectively address the limitation and whether the employee’s essential job functions can be performed remotely without causing “significant difficulty or expense” to your institution. Consult an attorney about your institution’s obligations and keep a record of the interactive process with the employee.

Employees may request telework for other reasons, such as health and safety concerns of family members or because their commute or family obligations are better served through telework. While open communication is important, these situations aren’t subject to an ADA analysis. The Equal Employment Opportunity Commission (EEOC) has stated that an employee without a disability isn’t entitled under the ADA to work from home as an accommodation to protect a family member with a disability from potential COVID-19 exposure.

The EEOC also has clarified that just because an employer temporarily excused one or more essential job functions when it permitted telework for pandemic-related safety reasons doesn’t mean that the employer has permanently changed the essential functions, or that it must continue offering telework if it requires continuing to excuse the employee from performing an essential function after the office has reopened. Review your established policies, ensure all decisions are grounded in legitimate business reasons, and seek legal advice when needed.

Employees may have mental health conditions that have been exacerbated by the COVID-19 pandemic, resulting in a need for new or additional accommodations. Some employees also may have new fears or phobias related to COVID-19. Employers will need to use the interactive process to determine whether the mental health condition meets the definition of a disability under the ADA and to what extent the impairment limits a major life activity. The EEOC notes that employers should address these accommodation requests using steps from the regular process, including asking questions to determine whether the condition is a disability, discussing possible accommodation options, performing an undue hardship analysis where necessary, and requesting medical documentation if needed. Institutions should consult an attorney about their obligations.

The EEOC has stated  that temporary or short-term accommodations are allowable, and employers may shorten or adapt the interactive process when granting these accommodations. The EEOC also notes that employers may place an end date on the accommodation due to changing restrictions from COVID-19, but employers must consider employee requests for extensions, particularly if public health directives or government restrictions change.

Laws and Contracts

Because multiple federal and state laws may apply, UE strongly recommends consulting with counsel about which laws impact your institution.

On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became law and required employers with fewer than 500 employees to provide emergency paid sick leave to employees who can’t work (including telework) and emergency paid Family and Medical Leave Act (FMLA) benefits. While the mandatory paid leave provisions of the FFCRA expired Dec. 31, 2020, the American Rescue Plan Act (ARP) passed on March 11, 2021. It extends the FFCRA through Sept. 30, 2021, on an optional basis. The ARP permits eligible employers to claim tax credits reimbursing them for the cost of providing employees with paid sick and family leave (including leave to take or recover from vaccinations) because of COVID-19. Under the ARP, employers are only eligible for the tax credits if they provide leave to all employees who qualify.

In addition, some states have enacted their own laws governing COVID-related leave, so it’s critical to consult legal counsel in your state and states where your institution operates.

Moreover, institutions still need to comply with a host of other federal and state laws ─ regardless of the emergency caused by COVID-19 – and should consult counsel about continuing to meet these obligations. Applicable laws may include (but aren’t limited to):

  • Title VII, and equivalent state laws
  • The Age Discrimination in Employment Act (ADEA), and equivalent state laws
  • FMLA, and equivalent state laws
  • The Fair Labor Standards Act (FLSA), and equivalent state laws
  • The ADA, and equivalent state laws
  • Section 504 of the Rehabilitation Act
  • The Occupational Safety and Health (OSH) Act, and equivalent state laws
  • The Worker Adjustment and Retraining Notification (WARN) Act, and equivalent state laws
  • The National Labor Relations Act (NLRA), for unionized faculty or staff
  • The Employee Income Retirement and Security Act (ERISA)
  • Health Insurance Portability and Accountability Act (HIPAA)
  • The Genetic Information Nondiscrimination Act (GINA)
  • The Equal Pay Act (EPA)
  • The Uniformed Services Employment and Reemployment Rights Act (USERRA)

Whether to conduct layoffs or furloughs is a business decision for your institution, but UE strongly recommends consulting an attorney with appropriate expertise before making that decision ─ and continuing to seek legal advice during any layoff process. State laws may come into play. For example, some states require accrued vacation time to be paid when employment is terminated (but usually not if employees are furloughed, since they may be called back to work). In addition, be careful to follow any internal policy and procedure your institution has adopted governing layoffs, including how employees are selected for layoff. This is especially important if you need to lay off tenured faculty, who usually have specific rights through a faculty handbook or individual contracts.

Campus Health

In June 2021, the Occupational Safety and Health Administration (OSHA) updated its guidance for employers to mitigate and prevent the spread of COVID-19, focusing on employees who aren’t vaccinated or are otherwise at risk from the disease, such as those with certain underlying medical conditions.

Stressing the protection offered by vaccines (and urging employers to encourage and make it easier for employees to receive them), the guidance states that, unless required by other laws or regulations, employers no longer must take special steps to protect vaccinated employees who aren’t otherwise at risk. However, OSHA recommends that employers implement “multiple layers” of protection for unvaccinated and at-risk workers, including but not limited to physical distancing, maintaining ventilation systems, performing routine cleaning and disinfecting, and requiring masks or other personal protective equipment (PPE) “when appropriate.” The guidance also states that employers should remove from the workplace anyone who becomes infected with or has symptoms of COVID-19, as well as unvaccinated people in close contact with someone who has the disease. Additionally, OSHA released an emergency temporary standard with updated mandatory requirements to protect workers in health care settings.

Yes. The EEOC makes clear that employers covered by the ADA may ask employees who physically enter the workplace if they have been diagnosed with or tested for COVID-19 or if they have symptoms of the virus (such as cough, fever, chills, or respiratory issues). Employers may exclude from the workplace employees with COVID-19 or its associated symptoms.

Consistent with the ADA, employers must treat all information related to an employee’s illness (whether from COVID-19 or not) as a confidential medical record.

Yes. According to the EEOC and the Centers for Disease Control and Prevention (CDC), if employees have symptoms consistent with COVID-19 or the seasonal flu during a pandemic outbreak, you can require them to stay home or to return home after they arrive at work. In addition, the OSHA instructs employers to send workers home or to seek medical care. If these workers are unable to immediately leave the workplace, OSHA recommends isolating them “with a closed door.” Employers should take care to apply neutral, uniform criteria to everyone and avoid making decisions based on national origin, race, or any category protected by federal or state law.

Yes, as long as the inquiry isn’t disability-related. The EEOC cautions that health care providers may be too busy during and immediately after an outbreak to provide this documentation. Employers may consider other means of obtaining satisfactory proof of the employee’s fitness to return, such as an email from a local clinic certifying that the employee doesn’t have COVID-19. Alternatively, institutions might consider allowing employees who show no symptoms for a certain amount of time (such as 14 days, or another time period identified by the CDC or another public health authority) to return to work without requiring medical documentation.

In general, no – assuming they don’t qualify for a disability accommodation under the ADA. As they shift back to in-person from remote operations, institutions are likely to receive many requests for disability accommodations – particularly based on alleged mental health conditions – and it’s important to conduct an individualized assessment of each request.

Otherwise, under OSH Act, employees can refuse to come to work only if they believe doing so would put them in “imminent danger,” a high standard that means an immediate risk of “death or serious physical harm.” Very few, if any, educational workplaces are likely to present this level of risk to employees due to COVID-19.

By Hillary Pettegrew, JD, Senior Risk Management Counsel

More From UE
Coronavirus Part 1: Campus Health and School Closures
Coronavirus Part 3: Emergency Response and Campus Operations
Coronavirus Part 4: Vaccinations, Study Abroad, COVID Policies

Note for UE members: UE’s risk management advice is distinct from the coverage provided under its policies. To understand UE’s insurance coverage for COVID-19 testing and vaccination efforts, administrators responsible for your institution’s insurance program should read UE’s coverage advisory.