Ways to Accommodate Immunocompromised Workers as You Reopen Your Workplace

When the COVID-19 pandemic emerged in 2020, most businesses that were able to closed down their offices and accommodated remote workers. By late 2021, at least 85% of businesses that had shut down temporarily had reopened, according to USA Today. For office workers, the return to work has varied. Many companies shuttered their physical office space and transitioned to full-time remote workforces. Others, including American Express, Wells Fargo & Co., and Meta Platforms Inc. planned office reopenings in March 2022. Not all workers are ready for this reopening, though. The coronavirus pandemic has highlighted new considerations for immunocompromised workers and employees who care for or live with immunocompromised people. As your business navigates this new normal, learn how to accommodate all at-risk workers and comply with national worker protection laws.

What does it mean to be immunocompromised?

The term “immunocompromised” means that someone's immune system may not protect them from infection. It also means the immune system may not be able to distinguish between foreign and normal cells. Yale Medicine reports that around 3% of the United States population qualifies as moderately or severely immunocompromised. This group is more at risk for serious illness or mortality after contracting COVID-19, even if they’re vaccinated. Workplaces that don’t have COVID-19 vaccination programs in place may have workers coming into the office who:

• Aren’t vaccinated
• Have COVID-19 but are asymptomatic
• Put immunocompromised workers at risk

There are other in-office risks for immunocompromised workers beyond other employees. These include office visitors, clients, and vendors. Employers should also be aware that some workers may live with or care for someone who’s immunocompromised. Getting coronavirus at the workplace could put employees at risk of passing it on to immunocompromised people at home. If you require that all your employees come back into the office, prepare for some pushback. Many workers may have concerns; it helps to have policies and procedures in place to deal with threats to vulnerable workers.

What protections are in place for immunocompromised workers?

Under the Americans with Disabilities Act, employees have the right to reasonable accommodation if they have a disability. Due to the pandemic, this includes being at higher risk for coronavirus due to health conditions including:

• Being immunocompromised due to an organ transplant
• Cancer
• Chronic kidney disease
• Chronic obstructive pulmonary disease (COPD)
• Obesity
• Serious heart conditions, including heart failure or coronary artery disease
• Sickle cell disease
• Type 2 diabetes

There are other conditions that may increase a person’s risk of the effects of coronavirus. These include hypertension, liver disease, and pregnancy. A person’s doctor may recommend that a person avoid working in an office due to various health conditions. The U.S. Equal Employment Opportunity Commission (EEOC) released a guide for employers on how to maintain workplace safety post-pandemic. If an employee requests a reasonable accommodation from an employer, the employer must process the request using applicable ADA standards as a guide. Accommodations may include:

• Granting the employee the ability to work remotely
• Adding barriers between workstations to reduce contact with others
• Implementing social distancing guidelines among coworkers

If an employee doesn’t request a reasonable accommodation, there’s no mandate for employers to provide accommodations. There’s also no requirement to provide accommodations for employees who request one due to caring for or living with an immunocompromised individual. Failing to provide accommodations for this type of situation, though, could turn off the employee. That's why some employers are attempting to accommodate employees in these situations.

What if an employee refuses to come to work for fear of infection?

The Society for Human Resource Management has some guidance on how to deal with employees who don’t want to come back to the office due to COVID-19. Have a conversation. First, employers should talk with the employee to learn about their concerns. If the concerns are reasonable, the employer should take steps to address them however possible. Explore legal protections. Employers should analyze what legal protections the employee has. Taking corrective action, such as firing or disciplining an employee who refuses to come to the office, could put the company at risk.

• Under the Occupational Safety and Health Act (OSHA), employees can refuse to work if they believe they’re in imminent danger.
• Under the National Labor Relations Act (NLRA) employees have the right to join together to refuse to work in unsafe conditions.

Use existing time-off policies. Employers can point employees to their existing time-off policies if they want to take leave. Employers can protect themselves by continually updating their safe workplace policies and notifying employees of any changes. They can also implement policies such as vaccine mandates and temperature checks. These can create a safer working environment for all employees.

Create a fair policy for bringing workers back into the office

Your workforce sustains your operations. It’s important to create fair policies that allow for flexibility when possible. To have a successful workplace reopening, employers should:

• Have open conversations with employees and be receptive to requests for accommodation.
• Offer remote and hybrid work environments when possible and reasonable.
• Maintain confidentiality on employee medical conditions.
• Create a safe working environment. Use recommended precautions in the office.
• Communicate coronavirus transmission-reduction strategies in the workplace. These include hygiene and hand-washing, social distancing, and sanitization.
• Train managers on current Centers for Disease Control and Prevention (CDC) and local health department pandemic guidance.
• Choose a person or group of people to manage requests from employees who don’t want to return to work.

Many immunocompromised workers have safety concerns about how returning to the office. Employers should have policies in place that meet their legal and business requirements. Consult with an employment attorney to protect your business and your employees.

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

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