Conducting enterprise within the U.S. Virgin Islands poses distinctive challenges not usually encountered within the states, but additionally distinctive alternatives. This 20-part collection presents ideas for doing enterprise within the U.S. Virgin Islands, protecting a broad array of subjects affecting employers. Half 9 of this collection addresses the legal guidelines related to accommodating disabled or high-risk workers within the office.
Tip 9: Accommodating Disabled or Excessive-Danger Workers Throughout the COVID-19 Pandemic
In response to the COVID-19 pandemic, employers within the U.S. Virgin Islands and elsewhere have been pressured to regulate enterprise practices and implement numerous protocols to scale back transmission of the coronavirus (SARS-CoV-2). The pandemic additionally has resulted in heightened considerations relating to potential elevated dangers for workers who’re disabled or in any other case fall inside sure high-risk classes. Navigating these points requires an understanding of the relevant legal guidelines, in addition to an understanding of steerage from federal and territorial public well being authorities.
Legal guidelines Relevant to Employers within the U.S. Virgin Islands
The People with Disabilities Act (ADA), which was signed into regulation on July 26, 1990, prohibits discrimination primarily based on incapacity in all employment practices, together with “job software procedures, hiring, firing, development, compensation, coaching, and different phrases, circumstances, and privileges of employment.” It’s relevant to personal employers (together with employers within the U.S. Virgin Islands) with 15 or extra workers, state and native governments (together with the Authorities of the U.S. Virgin Islands), employment businesses, and labor unions.
All employers doing enterprise within the U.S. Virgin Islands, no matter dimension, are coated by the Virgin Islands Civil Rights Act (VICRA), which was expanded in 2014 to make it illegal “to refuse to rent or make use of” a person due to incapacity, to “bar or to discharge” a person from employment due to incapacity, or to “discriminate in opposition to” a person due to incapacity “in compensation or in phrases, circumstances or privileges of employment.” Though the contours of the VICRA will not be as well-defined as these of the ADA, it’s seemingly that businesses and courts can be urged to construe the VICRA as offering at the very least as a lot safety because the ADA.
Though COVID-19 might not qualify as a incapacity for functions of the ADA as a result of usually temporary period of the signs related to the sickness, the U.S. Facilities for Illness Management and Prevention (CDC) has said that people with the next circumstances are at elevated danger for extreme sickness from COVID-19:
Continual kidney illness
COPD (continual obstructive pulmonary illness)
Immunocompromised state (weakened immune system) from strong organ transplant
Weight problems (physique mass index [BMI] of 30 or larger)
Severe coronary heart circumstances, similar to coronary heart failure, coronary artery illness, or cardiomyopathies
Sickle cell illness
Sort 2 diabetes mellitus
Because of this, and notably because the variety of reported, optimistic instances enhance, Virgin Islands employers might face a rising variety of requests to accommodate people who might not have required any lodging previous to the outset of the pandemic. Under are a number of steadily requested questions associated to this situation.
Query 1. Is an employer required to permit an worker with a incapacity to telework?
Reply 1. Telework could also be an inexpensive lodging for a person with a incapacity. Nevertheless, throughout the interactive course of supposed to determine an inexpensive lodging, employers might suggest and talk about different lodging, together with modifying the worker’s workspace to separate the person from different workers, adjusting work hours, eliminating marginal features that enhance the danger of publicity to COVID-19, or offering further protecting gear for an worker to make the most of whereas working.
Q2. Can an worker refuse to put on a protecting face protecting or use different protecting gear due to a incapacity?
A2. Pursuant to an government order issued by U.S. Virgin Islands Governor Albert Bryan Jr., workers are required to put on face coverings or masks throughout buyer interactions and “every time potential” throughout different work actions. If an worker seeks an exemption from this requirement primarily based upon a incapacity, an employer can request proof that the worker’s well being situation makes the sporting of a face protecting unsafe or inadvisable. The employer might also interact in dialogue with the worker to determine different potential lodging, similar to permitting the worker to take extra frequent breaks to take away the face protecting and permitting the worker to work at a distance from different people, which might permit the worker to proceed to carry out the important features of the place.
Q3. Is an employer allowed to bar an worker from the office when the employer is aware of the worker has a situation that locations that particular person at excessive danger of issues from COVID-19?
A3. An employer can not exclude an worker from the office solely as a result of the worker has a incapacity that locations the person at a excessive danger of issues from COVID-19, except below the ADA, the employer can display a “important danger of considerable hurt” to the person. This can be a excessive commonplace, which requires consideration of the severity of the neighborhood unfold, the character of the worker’s work duties, and different protocols in impact on the office.
This fall. Is an worker entitled to an lodging to keep away from exposing a member of the family who’s at excessive danger?
A4. The ADA doesn’t require an employer to accommodate a person and not using a incapacity primarily based upon the incapacity of a member of that particular person’s family, and it’s unlikely that any such requirement could be held to exist below the VICRA. Nevertheless, an employer might agree to permit such a person to telework, or supply different lodging on a voluntary foundation. Employers that elect to take action might need to think about adopting clear tips to keep away from potential discrimination or retaliation claims from different workers who might also need related lodging. A written coverage that’s distributed to all workers, together with applicable coaching to coach administration and supervisory personnel in regards to the existence and nature of the coverage, can help in minimizing the potential for well-intentioned actions to generate claims of unfair therapy.
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