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Overview

 Presenter:  Patricia Eyres, Managing Partner, Eyres Law Group

Public entities and employees are eagerly anticipating a phased “re-opening” for business over the coming weeks.  What will the transition look like? Whether it is the expected slow easing of restrictions, any hopes for a return to the regular world of work are not realistic. Instead, workers and their leaders will be tasked with creatively managing continuity of work functions. The way in which essential functions are performed moving forward, from the legal perspective of workplace accommodations, will involve modifications and adjustments – both to accommodate the needs of employees covered by the FEHA and the realities of coping with pandemic precautions while awaiting a vaccine for COVID 19 exposures.

This webcast will explore the legal, policy, and practical considerations in returning to a workplace with many of the same demands for services and production, but only with careful balancing to assure that individuals needing either accommodations are able to perform their essential duties safely and capably.

We anticipate that as public employers begin to open physical facilities to employees and the public at large, more employees who have either been unable to work during the shutdown or have been working only via telework will raise concerns and request an array of accommodations at the prospect of returning to their worksites. This will trigger an increase in triggers for the legally mandated interactive process and the need to evaluate an array of workplace accommodations relevant in the context of the new realities of ongoing COVID 19 exposures.

Likewise, public entities must anticipate and plan for requests for leave by employees who believe they are unable to resume onsite work  due to their own medical need to extend self-isolation, or the need to continuing caring for a close family member with underlying health conditions that require continued self-isolation. Some employees will have leave readily available, and for those who may have exhausted prior leave options during the shelter-in-place, departments will need to treat these through the accommodation process.

Many people will fall into the designated “vulnerable’ categories for serious illness from exposure to COVID 19 infection based on age (over 65), or a broad array of complicating medical conditions. These modifications and adjustments must focus BOTH on individuals who can return and must observe safe practices but are not in “vulnerable” populations. There are separate modifications, accommodations, and lingering leave issues (PROCESS) for those more vulnerable employees to integrate them where appropriate into a transitional return to workplaces, avoid isolating them from their peers but at the same time initiate safety practices unique to that population. All of this is separate from, but builds upon, the issue of transitioning to expanded telework.

We will cover:

1. Overview of applicable legal standards – statutory protections under the federal ADA and the California FEHA; leaves under FMLA, CFRA, PDL (for employees with early stage pregnancies where exposure to COVID 19 creates a high risk), to the ongoing availability of the federal FFCRA or new leave laws being actively considered by the California legislature.

2. Analysis of applicable regulations that will be relevant to responding to requests for leave or accommodations, including a new “RTW section” in the updated guidance and maintaining stable performance from the EEOC, the California Dept. of Fair Employment and Housing, and any relevant guidelines from public health or safety regulations.

3. When will “imminent safety hazard’ analysis come into play when considering the options for reasonable accommodations for employees returning to physical workspaces?

4. What impact will successful performance of telework functions during the shelter-in-place have on employees requesting telework for long term assignments (even when those telework requests were denied as an undue burden on operations before COVID 19 compelled implementing telework.  

5. Proactive strategies for anticipating --- and planning for – the level of safe practices that may be required to serve as both reasonable accommodations and ongoing considerations to keep employees working productively, including physical distancing, staggered shifts, when and whether to mandate face-coverings or PPEs for some workers.

6. Crafting a defensible and effective accommodation plan to address options for individuals with underlying medical conditions to assure they are able to perform essential job functions safely and capably while remaining engaged with their peers, leaders, and members of the public, including when protective measures are built into medical providers’ restrictions on employees ability to resume job tasks in the physical facility, or to remain on the job.

7. What should your HR and payroll teams anticipate for a flood of new leave requests for workers with their own illness, symptoms, or preventative health concerns and their caregiver needs for close family members, both in the industrial and non-industrial leave contexts.

8. How to anticipate, respond to, and investigate discrimination and retaliation complaints – from older workers who insist on returning to work despite high risk factors, to individuals claiming discriminatory practices within the workplace or retaliation for requesting accommodations or taking LOAs.

9. How to implement policies and procedures to monitor workplaces in order to quickly focus on requiring individuals experiencing symptoms of illness or known exposures to stay home, whether or not they can productively work remotely.

10. What current policies require vetting, and either wholesale updates or “tweaking” to match the realities of physical distancing and workplace protections for 18 to 24 months.

Need More Info or Help?
We hope you can join us. Feel free to contact Doug McGill for more details.

Phone: 916-850-7300
Email: dmcgill@csac-eia.org