Portable Sanitation Association International

ASSOCIATIONINSIGHT Portable Sanitation Association International News BIWEEKLY EDITION JUNE 24, 2020 Page 23 What You Should Know about COVID-19, ADA, and EEO Laws…continued from page 22 Analysis of these factors will likely include considerations based on the pandemic's severity in a particular area, the employee's own health (how well the disability is controlled, for example), and his particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant. Even if an employer determines that an employee's disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). ADA regulations require employers to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation. Caregivers/Family Responsibilities If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO- protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have care taking responsibilities for children. Managing a portable sanitation company, like any business, has its challenges. And the new reality we've stepped into these past few months has demanded that businesses be extra flexible and vigilant. While some ADA and EEO laws have new language, the general intent of these laws is still the same. Learn what you can, work with your team members, and treat your employees fairly. Only by working together (at a safe distance) will we come through this unique challenge stronger than ever. v

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