Page 22 - Delaware Lawyer - Summer 2021

FEATURE | WHEN IT’S OVER, BUT NOT REALLY...
Employers can request proof of vaccination and grant greater liberties to those who have been vaccinated, including the ability to resume work-related travel and move about the office without a mask.
ever before. Those facing mental health issues as a result of the pandemic — a significant proportion of our workforce — may be understandably reticent to venture back into a world that has felt unsafe for so long.
Within this new reality, employers are trying to return to business as usual and finding themselves frustrated by employee requests for accommodations for mental health issues. A business’s first reaction is often to think that an employee is attempting to take advan- tage and thereby extend a more pleasant work-from-home environment.
But when an employee’s intentions are suspect, employers should return to fundamentals. Employees with physical or mental impairments that substantial- ly limit a major life activity — including the ability to work — are entitled to rea- sonable accommodations that will allow them to perform the essential functions of their jobs. To identify these accom- modations, the ADA and the Delaware Persons with Disabilities Employment Protection Act require us to engage in an interactive process. This includes gathering information about the nature of the employee’s impairment, its sever- ity and anticipated duration, the activi- ties limited by the impairment, and the extent to which it limits the employee’s ability to perform his or her essential job functions.
Keep in mind that employees seek- ing accommodations are not necessarily entitled to their preferred modification, if there is an alternative accommoda- tion that will allow them to perform their essential job functions and cause less disruption to the workplace. But enter into the interactive process with an open mind, and a willingness to fully and fairly evaluate what the employee is seeking. If continued remote work is not a viable option, consider alterna- tives such as an adjusted work schedule, a hybrid office/remote arrangement, or a phased return to the office.
educational campaigns, however, are perfectly lawful. Encouraging employ- ees to get vaccinated because it is the right thing to do — for themselves, their families, and those most at risk in our society — is an easy message to pro- mote. And we should all be adding our voices to that choir.
In addition, employers can request proof of vaccination and grant greater liberties to those who have been vac- cinated, including the ability to resume work-related travel and move about the office without a mask. Many employers are shying away from these distinctions because they feel punitive to those who have chosen not to receive the vaccine — the prospect of relegating a small mi- nority of employees to wearing a mask indefinitely feels somewhat unjust. It also creates something of a visual mark- er for vaccine refusal.
As a result of both the risk of litiga- tion and ostracizing unvaccinated em- ployees, businesses are well-counseled to roll out new workplace safety rules with a strong plan in place. Policies should include a process for document- ing and tracking employees who have received the vaccine, clear disciplinary guidelines for individuals who violate masking and social-distancing rules, and a process for reporting safety violations that avoids hallway confrontations and resulting claims of harassment on the basis of an individual’s personal medical choices.
Finally, keep in mind that some em- ployees may choose to continue wear- ing masks regardless of vaccination sta-
tus as we all adjust to the rapidly chang- ing guidelines that have accompanied the vaccine rollout. While the CDC has loosened its masking guidelines, the saf- est course of action is to continue to wear masks indoors when in proximity to individuals outside of your house- hold — no one should ever be shamed for their choice to be cautious as we exit a once-in-a-century pandemic and find our way back to a more normal life.
When You Have to Laugh or You’ll Cry
Employers also need to be prepared for the many emotional and psychologi- cal hurdles employees will face as they return to the office. While there has been ample news coverage regarding the invisible toll that the pandemic has had on our personal lives, employers are just beginning to grapple with the im- pact of this damage on our workplaces.
The natural joy of spring and sum- mer, coupled with the excitement of being able to hug our friends and loved ones again, can easily mask the diffi- cult months that came before. The fear caused by empty grocery store shelves. Watching loved ones pass away, alone. Welcoming a new baby cut off from familial support. Every lost celebration of birthdays, holidays and major mile- stones. This has been a hard year.
In the face of this great loss, some are experiencing mental health struggles for the first time. And many who have a his- tory of depression, anxiety, post-trau- matic stress disorder, obsessive-com- pulsive disorder, and a litany of other issues, have seen greater challenges than
20 DELAWARE LAWYER SUMMER 2021