Responding to Employees’ Spouses’ Coronavirus Concerns

Allen Smith, J.D. By Allen Smith, J.D. July 7, 2020
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Many spouses of workers worry when their loved ones report to worksites during the pandemic, and some employees are afraid to work onsite because they have family members who are at high risk. Employers sometimes have legal obligations to respond to such concerns, and sometimes they don't. Some employers are accommodating workers with at-risk spouses whether they are obliged to or not.

While employers must accommodate at-risk employees with disabilities, the Equal Employment Opportunity Commission (EEOC) has confirmed that the Americans with Disabilities Act (ADA) does not require employers to accommodate an employee's family member with a disability.

"Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment," the EEOC has said in its guidance on COVID-19 and the ADA.

If an employee says his or her spouse is worried about the employee returning to work due to the spouse's or a family member's health issues, the employer isn't obligated to take those concerns into account unless the worker's need to care for the spouse or other family member is required by laws other than the ADA. These laws might include the Families First Coronavirus Response Act, the Family and Medical Leave Act and state laws, said Carolyn Rashby, an attorney with Covington & Burling in San Francisco.

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Voluntary Measures

But an employer can go beyond what the ADA requires. The employer may choose to let the employee continue working from home, if it wants to accommodate a worker whose family member is at a particularly high risk should the family member be infected with COVID-19.

"There are no particular requirements to guide what documentation the employer could ask for in this situation to confirm that the family member is indeed high risk," Rashby said.

The employer should avoid asking for detailed medical information or a diagnosis, which could implicate privacy concerns, she cautioned. "Instead, ask the employee to submit a note from a health care provider confirming that the family member is in a high-risk group or has a disability that may make him or her more susceptible to COVID-19 complications," she recommended.

Treat any medical information confidentially.

Avoid prohibited discrimination. In California, domestic partners have the same rights as spouses. So, if the employer provides a special arrangement for an employee with a high-risk spouse, the employer would need to similarly respond to a request by an employee with a high-risk domestic partner, she noted.

"Employers may also want to consider implementing a policy allowing employees sharing a household with high-risk individuals to request an accommodation, and the employer could only offer this for family members—including domestic partners—who live with the employee," Rashby said.

Creating a policy that is applied consistently across employees becomes more difficult once you start to move away from individuals the employee is living with.

"A policy with a clear limitation on which nonemployees to accommodate—roommates, spouses, domestic partners, children—can be manageable and practical, depending on the employer's operational needs," she said.

If an employee expresses concern about going to work because he or she has a family member at high risk who does not live with him or her but who he or she often visits, accommodations in such instances could open a Pandora's box. There might be discrimination claims against the employer "due to treating one employee differently from another when it accommodates an attenuated request for one employee, but not for another," cautioned Susan Gross Sholinsky, an attorney with Epstein Becker Green in New York City.

Employers granting leave to employees in such circumstances also "may soon find themselves inundated with leave requests," said Jaime Wisegarver, an attorney with Hirschler Law in Richmond, Va.

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What If Spouses Contact Employers?

Sometimes, spouses call employers to share their concerns about employees going to worksites. How should employers handle this?

"What is an appropriate response by the employer would depend on the purpose of the spouse's call," Rashby said.

The EEOC has clarified in guidance that a family member, friend, health professional or other representative may request a reasonable accommodation on behalf of an employee with a disability.

"Therefore, if the employee's spouse is calling to make a reasonable accommodation request on behalf of an employee, the employer should listen, take notes and treat the request as if it was coming from the employee," she said. "If it's unclear if that's why the spouse is calling, the employer should attempt to clarify so that nothing is missed."

When a spouse is raising general concerns about an employee going to the workplace and it's clearly not a request for accommodation, the employer may be able to allay some concerns by listening and sharing some of the safety and health precautions the company is taking. "The employer should also let the spouse know that the door is open should the employee want to discuss workplace concerns at any time," Rashby added.

Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Company in Westminster, Md., said, "With the current state of affairs, I think HR pros would want to remain as open to receiving as much information as possible."

HR professionals might consider inviting the spouse to have a conference call with the employee on the line, listen to the spouse's concerns and ask for the employee's thoughts, she recommended.

Nonetheless, speaking directly with the spouse at length about workplace issues can be a slippery slope. Jonathan Yarbrough, an attorney with Constangy, Brooks, Smith & Prophete in Asheville, N.C., and Raleigh, N.C., doesn't recommend such communication unless it's an emergency or the employee is incapacitated.

"I would thank the spouse for the call and remind him or her to have the employee contact HR directly," he said. "I would not get into detailed discussion of any issues related to the employee, but instead thank the spouse for his or her call and politely exit from the conversation."

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