Employment Accommodations During COVID-19

Published: September 10, 2020

(Updated Sept. 23, 2020)

Important disclaimers:

  • This is the best advice as of Sept. 9, 2020.
  • We are in unprecedented times with the COVID-19 pandemic. There is no perfect playbook to follow. Please note, this guidance is mostly untested in courts, so it is crucial for you to work with your legal counsel to determine the best course of action for your specific city.
  • These guidelines complement existing information included on the League’s other employment-related COVID-19 pages, including:

Get answers to these FAQs about employee accommodations:

Q1. How will the various school options, ranging from in-person to blended to online learning, impact employee eligibility for paid leave this fall under the federal Families First Coronavirus Response Act (FFCRA)?  (Updated September 23, 2020)

Q2. As mandated by the governor’s Executive Order 20-81, our city policies require employees to wear a mask when they are working with others, but I have an employee refusing to wear a face mask due to a medical condition. What do I do?

Q3. I have an employee whose job requires her to work from a city building, but she says she does not feel safe working in the office, and she wants to work from home. She points to the governor’s Executive Orders 20-56 and 20-74, which state “any worker who can work from home must do so.” What should I do?

Q4. My employee refuses to come to work due to concerns about a family member’s underlying health condition. What should I do?

Q5. I have an employee who tested positive for COVID-19 over the weekend and was in the office last week. What steps should I consider taking?

Q6. If I hear that my quarantined employee is out in public, may I refuse his or her FFCRA leave?

Q7. I heard something different from guidance the League has provided. What should I do?

Emergency Paid Sick Leave and online learning in fall 2020

Q1. How will the various school options, ranging from in-person to blended to online learning, impact employee eligibility for paid leave this fall under the federal Families First Coronavirus Response Act (FFCRA)?

A1. The Department of Labor (DOL) updated its COVID-19-related leave FAQs in late August specifically pertinent to FFCRA leaves and school openings.

The DOL has further noted in FAQ #98 in the Department’s August 27, 2020 guidance that an employee who is currently home to care for a child who would otherwise be participating in in-person schooling, but is home isolating awaiting COVID-19 test results per school requirements, would not only be eligible for Emergency Paid Sick Leave but also Public Health Emergency Leave (expanded FMLA Leave). The DOL explains this is because the school is effectively “closed” to the child pursuant to the home isolation requirement.

—See questions 98, 99, and 100 of the DOL FFCRA FAQs (look under the Return to School category)

Return to top of page

Managing accommodation requests for face masks

Q2. As mandated by the governor’s Executive Order 20-81, our city policies require employees to wear a mask when they are working with others, but I have an employee refusing to wear a face mask due to a medical condition. What do I do?

A2. While the governor’s order exempts those with medical conditions from wearing a mask, there is not a similar exemption for the workplace, so please explore more about what is going on with the employee. Ask if the employee has any documentation to support the medical condition that prevents the employee from wearing a mask. Remember that employers can request information/documentation regarding an employee’s health condition and inability to wear a mask. Question number G.2 from the Equal Employment Opportunity Commission’s (EEOC) COVID-19 Technical Assistance Questions and Answers can be a helpful reference as well.

Engage in an interactive discussion involving the employee, his or her direct supervisor, and an HR representative or the city administrator to talk through options, including possibly wearing a face shield (although this may not be a great alternative because they may not prevent the spread of the virus—read an article on the LMC Pipeline blog); working from home (which may or may not be reasonable but the city will want to evaluate and document); taking medical leave (paid by using accrued paid time off or unpaid, possibly FFCRA as applicable, and possibly “traditional” Family and Medical Leave Act FMLA leave). Perhaps working alone is also a viable option (although a city will still need to work through issues associated with that person using common areas like bathrooms, etc.). Keep in mind, the Americans With Disabilities Act (ADA) and other laws require any associated medical documentation the city possesses as part of this accommodation process to be safeguarded to ensure others cannot access the protected information.

In the long run, it’s best for the city to come to a workable solution with the employee. League employment attorneys note that after the pandemic is over, there is going to be a lot of analysis by legal experts, policymakers, regulatory authorities, courts, and legislators, as well as employers, about what was learned during the pandemic about remote work and reasonable accommodations for medical issues. Cities can get a head start on that analysis by thinking outside the box now and coming up with solutions that can be a win-win for the city and the employee.

Return to top of page

Managing work-from-home requests

Q3. I have an employee whose job requires her to work from a city building, but she says she does not feel safe working in the office and she wants to work from home. She points to the governor’s Executive Orders 20-56 and 20-74, which state “any worker who can work from home must do so.” What should I do?

A3. The first step is to stop and consider whether the employee truly does need to be at the city building in order to perform her essential functions. Has the city thoroughly considered options for performing work remotely? Many office workers are able, through use of technology, to effectively perform their duties completely off-site.

Once that analysis is done, then it is important to learn more about what is driving the employee’s concern. The employee may be able to have a doctor provide a note stating that the employee is an at-risk individual. Then the employee may be eligible for FFCRA Emergency Paid Sick Leave. Very simplistically, if a COVID-19 qualifying reason prevents an employee from working a specific schedule, then he or she may be entitled to the paid leave. For additional reference information on FFCRA leaves, see question 13 on the League’s City Employment Issues During COVID-19 Pandemic.

Keep in mind, all employers will want to engage in an interactive process under the ADA before concluding accommodations cannot be made for an individual. In question D.6 of its COVID-19 Technical Assistance Questions and Answers, the EEOC notes that an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he or she requested or any other.

Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his or her position (that is, the fundamental job duties).

—Learn more about having an interactive discussion from the Job Accommodation Network

Within the interactive approach with the employee reluctant to return to work, the employer can explore the reasons and how they may be addressed. The possibility of flexible scheduling and intermittent use of leave, by agreement by both the employer and the employee, would be a useful (and possibly necessary) tool to fulfill your ADA obligations but also possibly learn of some approaches that could work to address both yours and the employee’s concerns.

Consider in that discussion whether the employee could come in at hours where he or she is the only individual working. Or is there any work that can be accomplished remotely? Sometimes telework because of the COVID-19 pandemic can serve as a trial period to demonstrate whether an employee can satisfactorily perform all essential functions while working remotely. Consider options listed under “Reasonable accommodations” in this Minnesota Cities magazine article as well.

Perhaps there may be a blend of solutions discovered once the interactive discussion is undertaken with the employee.  Of course, it takes two participants to discuss options, so if the employee is unwilling to discuss it, discipline may be necessary. Please work with your legal counsel to document the city’s efforts and accommodations offered, as well as the fact that the employee has turned down all accommodations offered, before proceeding down the discipline path. Remember, the ADA and other laws require any associated medical documentation the city possesses as part of this process to be safeguarded to ensure others cannot access the protected information.

While the city cannot disclose an employee’s medical condition to others, the EEOC notes  that it is permissible to advise staff needing to know how to contact the employee working remotely and to share that the employee is working even if not present in the workplace, without saying why. (See question B.7 of the EEOC’s COVID-19 Technical Assistance Questions and Answers.) The EEOC also notes, if an employee is on leave rather than teleworking because he or she has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

Q4. My employee refuses to come to work due to concerns about a family member’s underlying health condition. What should I do?

A4. To avoid running afoul of the Genetic Information Nondiscrimination Act (GINA), cities will want to steer clear of asking employees a blanket question of whether they have any family members who have COVID-19 or symptoms associated with COVID-19. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who has symptoms associated with the disease. Of course, if the employee raises concerns about coming to work, it is important to learn more about what is driving that concern.

The employee’s family member may be able to have a doctor provide a note stating that he or she is an at-risk individual and then the employee may be eligible for FFCRA Emergency Paid Sick Leave. Very simplistically, if a COVID-19 qualifying reason prevents an employee from working a specific schedule, then he or she may be entitled to the paid leave. For additional reference information on FFCRA leaves: See question on the League’s web page City Employment Issues During COVID-19 Pandemic.

Keep in mind, although not required for a situation where an employee’s family member has an underlying medical condition, employers are encouraged to engage in an interactive process under the ADA before concluding accommodations cannot be made for an employee. See question D.13 of the EEOC’s COVID-19 Technical Assistance Questions and Answers.

—Learn more about having an interactive discussion from the Job Accommodation Network

Within the interactive approach with the employee reluctant to return to work, the employer can explore the reasons and how they may be addressed. The possibility of flexible scheduling and intermittent use of leave, by agreement by both the employer and the employee, would be a useful (and possibly necessary) tool to fulfill your ADA obligations but also possibly learn of some approaches that could work to address both yours and the employee’s concerns.

Consider in that discussion whether the employee could come in at hours where he or she is the only individual working. Or is there any work that can be accomplished remotely? Perhaps, there may be a blend of solutions discovered once the interactive discussion is undertaken with the employee.

Of course, it takes two participants to discuss options, so if the employee is unwilling to discuss it, discipline may be necessary. Please work with your legal counsel to document the city’s efforts and accommodations offered, as well as the fact that the employee has turned down all accommodations offered, before proceeding down the discipline path. Keep in mind, the ADA and other laws require any associated medical documentation the city possesses as part of this process to be safeguarded to ensure others cannot access the protected information.

While the city cannot disclose an employee’s family medical condition to others, the EEOC notes that it is permissible to advise staff needing to know how to contact the employee working remotely and to share that the employee is working even if not present in the workplace, without saying why. (See question B.7 of the EEOC’s COVID-19 Technical Assistance Questions and Answers.) The EEOC also notes, if an employee is on leave rather than teleworking because he or she has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

Return to top of page

Protocol for an employee testing positive in the workplace

Q5. I have an employee who tested positive for COVID-19 over the weekend and was in the office last week. What steps should I consider taking?

A5. See question 10 on the League’s page City Employment Issues During COVID-19 Pandemic. The bullet points outlined in that answer can be helpful to walk through with this question.

Return to top of page

Q6. If I hear that my quarantined employee is out in public, may I refuse his or her FFCRA leave?

A6. The League has called the Minnesota COVID Hotline at (651) 201-3920 recently and learned you may not be able to do anything in this situation from an employment perspective.

If the employee is an essential worker, the Centers for Disease Control and Prevention (CDC) guidance advises that employers may permit workers to continue to work if they have been exposed to COVID-19 but have no symptoms,  provided they adhere to additional safety precautions.

—Learn more about this from the Department of Homeland Security website

Assuming the employee is not a critical infrastructure worker, we have not seen anything in the DOL regulations about stopping Emergency Paid Sick Leave for any lack of compliance. That course of action is not recommended , since the leave is arguably an opportunity to keep the employee out of the workplace.

If the employee has tested positive for COVID-19 and is public safety personnel or holds a higher-level position in the workplace, there may be an opportunity to explore possible discipline, but a city will want to be careful and be sure to consult with their city attorney and the League of Minnesota Cities.

Return to top of page

Conflicting COVID-19 information

Q7. I heard something different from guidance the League has provided. What should I do?

A7. We are in uncharted waters with the COVID-19 pandemic, and unfortunately not all the guidance released by the Department of Labor and other agencies addresses each specific situation found in the workplace. While we try our hardest to provide the most up to date information to our members, the COVID-19 landscape is constantly evolving. In this environment, it is so helpful when we can all share information on unique questions as they arise. To that end, the League welcomes your thoughts and perspectives if you see differing information. Working together we can learn together.

Return to top of page

—Access more COVID-19 News and Resources