As we previously blogged, employers who are reopening after the COVID-19 lockdown can expect an increase in lawsuits from employees for retaliation and whistleblowing. The latest emerging trend is COVID-19 related lawsuits by pregnant employees. Because pregnant women are especially vulnerable to COVID-19, cases have been popping up across the country in which pregnant employees were terminated after requesting accommodations. For example, a pregnant employee in NJ was recently terminated after refusing to work directly with COVID-19 patients, despite the fact that her employer was aware of her pregnancy and had been provided a doctor’s note requesting an accommodation. Businesses that are reopening can protect themselves from litigation by following these steps.
- Quickly respond to accommodation requests. By having a designated person to handle accommodation requests, and by making sure that all requests are promptly directed to the appropriate party, employers can make sure that all requests are dealt with efficiently and consistently.
- Engage in the interactive process. Employers should engage in an interactive process to help find reasonable accommodations for pregnant employees, e.g., telework, providing personal protective equipment (PPE), providing isolated workspaces, etc.
- Document all accommodation requests. By documenting all requests, as well as any actions taken in response to those requests, employers are more effectively able to defend themselves against accusations that accommodation requests weren’t properly addressed.
- Document the reasoning behind all accommodation denials and terminations. It goes without saying that employers should never take adverse action against an employee for requesting an accommodation. While employers can still terminate such employees for reasons unrelated to their accommodation requests, they should be prepared to produce detailed paperwork documenting the legitimate, nondiscriminatory reason for their termination decisions.
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