Is this even legal? I thought employers were not allowed to ask medical questions.
Karla: Yes, under the Americans With Disabilities Act, employers may ask for medical documentation to support a request for reasonable accommodations such as working from home.
But now, in jobs where remote work is possible, working from home should be the rule, not the exception. This isn’t about accommodation — it’s about saving lives.
One by one, states and cities are ordering nonessential businesses to close and residents to stay home and limit in-person contact to avoid becoming carriers of the novel coronavirus. So I sincerely hope that by the time this column runs, your employer has recognized the enormity of what our nation is facing and changed its course. If not, here are a few reasons your employer’s approach is a bad idea:
First, health-care providers are swamped responding to the pandemic, which is why the Centers for Disease Control and Prevention currently recommends that employers not demand notes from doctors to confirm illness or fitness for work.
Second, it’s not just high-risk employees who need protection. Employees who are not personally in a high-risk category may have family members at home who are.
Finally and most important: The longer your employer dithers, the more employees and members of the public that it puts at risk.
If those arguments aren’t persuasive enough, employment law partner Amy Epstein Gluck at FisherBroyles offers legal considerations:
In addition to the ADA’S “reasonable accommodations” provisions, the Occupational Safety and Health Administration protects “employees who reasonably believe they are in imminent danger” if they come to the workplace.
Employees can’t legally be fired if they qualify to take unpaid leave under the federal Family and Medical Leave Act to recover or care for family members. What’s more, those rights were recently enhanced by the newly enacted federal Families First Coronavirus Response Act, which requires many employers to provide additional paid sick and family leave and broadens access to family leave.
But legal liability is kind of beside the point. Employers shouldn’t be worrying about how to legally get the most bang for their buck out of jittery employees. They should be focused on minimizing the strain on public resources and keeping their workers and workplaces as safe as possible.
Many employers have done just that, closing or altering their business operations while pledging paid leave and embracing telecommuting.
Others are giving the bare legal minimum required by law, following inconsistent rules on granting paid leave, or keeping operations running despite shelter-in-place mandates, or refusing to let employees work remotely.
A lot of “good guy”/”bad guy” narratives are emerging, and the ratio of concern for people over profits will largely determine which side of the public-perception-divide those employers end up on.
Of course, your employer may have reasons for being conservative in granting remote work. Maybe a crucial portion of its services must be performed on site to keep up with increased demand. But that’s all the more reason to allow everyone who can to work remotely — to keep the workplace as safe as possible for those who have to be there.