The flurry of federal, state, and local laws hastily passed in response to the COVID-19 pandemic have affected the workplace in ways employers have not seen before. Now, as employers seek to reopen their businesses, in-house counsel and Human Resources professionals tasked with navigating these uncharted waters should bear in mind which decisions could give rise to disability and leave litigation once the dust settles.

1. Discriminatory Treatment in Recalling Employees

Many employers will be reopening the workplace gradually. After determining whether any state or local mandates will limit or affect the reopening, employers must consider which positions, if not all, must be filled. Employers must ensure they use neutral, non-discriminatory selection criteria to determine which employees will be recalled to fill those positions. Such criteria might include seniority, job performance, or job classification.

Employers must be careful not to assume certain employees cannot or should not return based on childcare needs, caregiving responsibilities, or because they fall under the government label of “vulnerable population” (based on age, disability, or pregnancy). These assumptions may lead to discrimination claims.

2. Failure to Accommodate “High-Risk” Employees

Once employers send notices of recall or rehire, they must prepare to address accommodation requests from employees who refuse to return to work or ask to work from home due to health and safety concerns, especially employees considered to be “high risk” to COVID-19. Employers must assess, on a case-by-case basis, whether the employee is entitled to leave or other accommodations under the Americans with Disabilities Act (ADA) or applicable state or local laws. Employers must engage in the interactive process and provide a reasonable accommodation, unless doing so would present an undue hardship on the employer’s business. Failure to engage in this process, or otherwise disciplining such an employee for failing to return to work, may lead to a failure to accommodate claim.

3. Failure to Provide Required Leave

Employers reopening their workplaces must become acquainted with recently enacted COVID-19 leave laws, including the Families First Coronavirus Response Act (FFCRA). Before reopening, employers must determine whether they are a “covered employer” and thus required to provide the FFCRA’s Emergency Family and Medical Leave and Emergency Paid Sick Leave. Covered employers must ensure they have posted or distributed the requisite FFCRA Poster and should consider implementing a temporary policy on requesting and providing this leave. Failure to provide FFCRA leave can subject employers to penalties and enforcement by the U.S. Department of Labor’s Wage and Hour Division.