• DO engage in an interactive process with any employee who has a disability as defined by the Americans with Disabilities Act (“ADA”), or state or local disability laws, to determine if there is a reasonable accommodation that will allow the employee to return to the workplace safely without causing undue hardship to the employer. 

• DO NOT ignore the employee’s disability and condition the employee’s continued employment on their return to the worksite.  

• DO treat pregnant employees the same as any other employee with regard to their ability or inability to work, or need for job modifications. In addition, be aware that while the ADA does not consider pregnancy without underlying medical conditions to be a disability, many state and local laws do. As such, state and local laws may require employers to engage in an interactive process with pregnant employees to discuss reasonable accommodations.

• DO NOT unilaterally decide that employees who are pregnant, or who are members of any other vulnerable population identified by the CDC, should not return to the workplace. Although employers may have good intentions in making such decisions, they risk violating federal, state and local laws that prevent employers from making employment decisions based on employees’ age, gender, race or other protected categories.

• DO provide eligible employee with leave under federal, state or local laws, such as the federal Families First Coronavirus Response Act, and be aware of job protections and other employee rights under these laws. Employers may also choose to provide such employees with flexible work arrangements or other accommodations even though employers are not legally obligated to do so. 

• DO NOT inquire about whether an employee’s family members have been diagnosed with or have symptoms of COVID-19. The employer may, however, ask an employee whether they have been exposed to or had contact with anyone who has COVID-19 or associated symptoms.

• DO consider offering flexible work arrangements such as remote work, if possible, even though employers may not be legally required to do so.

• DO NOT treat such employees in the same manner as an employee with a disability. Fear of COVID-19 does not entitle an employee to an accommodation. At the same time, an employer should not be quick to force the return of non-essential employees who can work remotely. Federal law does not require employers to provide accommodations to employees who refuse to return to the workplace solely due to fear of COVID-19 exposure. However, federal law may protect employees who complain about their employers’ failure to comply with regulations, guidelines, and plans with respect to, for instance, safety and hygiene in the workplace. NYS and NJ employees may also file complaints with their respective Departments of Labor. 

• DO engage in an interactive process with the employee regarding potential reasonable accommodations, which may include alternative face masks, shields or other personal protective equipment, or perhaps paid or unpaid leave under federal, state or local law.

• DO NOT terminate the employee’s employment on the ground that state or local law requires face masks in the workplace, without first engaging in the interactive discussion with the employee and seeking further advice from counsel.