20 Tips for U.S. Virgin Islands Employers in 2020: Accommodating Disabled or High-Risk Employees During the COVID-19 Pandemic

Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part nine of this series addresses the laws relevant to accommodating disabled or high-risk employees in the workplace.

Tip 9: Accommodating Disabled or High-Risk Employees During the COVID-19 Pandemic                                                              

In response to the COVID-19 pandemic, employers in the U.S. Virgin Islands and elsewhere have been forced to adjust business practices and implement various protocols to reduce transmission of the coronavirus (SARS-CoV-2). The pandemic also has resulted in heightened concerns regarding potential increased risks for employees who are disabled or otherwise fall within certain high-risk categories. Navigating these issues requires an understanding of the applicable laws, as well as an understanding of guidance from federal and territorial public health authorities.

Laws Applicable to Employers in the U.S. Virgin Islands

The Americans with Disabilities Act (ADA), which was signed into law on July 26, 1990, prohibits discrimination based on disability in all employment practices, including “job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment.” It is applicable to private employers (including employers in the U.S. Virgin Islands) with 15 or more employees, state and local governments (including the Government of the U.S. Virgin Islands), employment agencies, and labor unions.

All employers doing business in the U.S. Virgin Islands, regardless of size, are covered by the Virgin Islands Civil Rights Act (VICRA), which was expanded in 2014 to make it unlawful “to refuse to hire or employ” an individual because of disability, to “bar or to discharge” an individual from employment because of disability, or to “discriminate against” an individual because of disability “in compensation or in terms, conditions or privileges of employment.” Although the contours of the VICRA are not as well-defined as those of the ADA, it is likely that agencies and courts will be urged to construe the VICRA as providing at least as much protection as the ADA.

Although COVID-19 may not qualify as a disability for purposes of the ADA due to the often brief duration of the symptoms associated with the illness, the U.S. Centers for Disease Control and Prevention (CDC) has stated that individuals with the following conditions are at increased risk for severe illness from COVID-19:

• Cancer
• Chronic kidney disease
• COPD (chronic obstructive pulmonary disease)
• Immunocompromised state (weakened immune system) from solid organ transplant
• Obesity (body mass index [BMI] of 30 or higher)
• Serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies
• Sickle cell disease
• Type 2 diabetes mellitus

As a result, and particularly as the number of reported, positive cases increase, Virgin Islands employers may face a growing number of requests to accommodate individuals who may not have required any accommodation prior to the outset of the pandemic. Below are several frequently asked questions related to this issue.

Question 1. Is an employer required to allow an employee with a disability to telework?

Answer 1. Telework may be a reasonable accommodation for an individual with a disability.  However, during the interactive process intended to identify a reasonable accommodation, employers may propose and discuss alternative accommodations, including modifying the employee’s workspace to separate the individual from other employees, adjusting work hours, eliminating marginal functions that increase the risk of exposure to COVID-19, or providing additional protective gear for an employee to utilize while working.

Q2. Can an employee refuse to wear a protective face covering or use other protective gear because of a disability?

A2. Pursuant to an executive order issued by U.S. Virgin Islands Governor Albert Bryan Jr., employees are required to wear face coverings or masks during customer interactions and “whenever possible” during other work activities. If an employee seeks an exemption from this requirement based upon a disability, an employer can request proof that the employee’s health condition makes the wearing of a face covering unsafe or inadvisable. The employer may also engage in dialogue with the employee to identify other potential accommodations, such as allowing the employee to take more frequent breaks to remove the face covering and allowing the employee to work at a distance from other individuals, which could allow the employee to continue to perform the essential functions of the position.

Q3. Is an employer allowed to bar an employee from the workplace when the employer knows the employee has a condition that places that individual at high risk of complications from COVID-19?

A3. An employer cannot exclude an employee from the workplace solely because the employee has a disability that places the individual at a high risk of complications from COVID-19, unless under the ADA, the employer can demonstrate a “significant risk of substantial harm” to the individual. This is a high standard, which requires consideration of the severity of the community spread, the nature of the employee’s work duties, and other protocols in effect at the workplace.

Q4. Is an employee entitled to an accommodation to avoid exposing a family member who is at high risk?

A4. The ADA does not require an employer to accommodate an individual without a disability based upon the disability of a member of that individual’s household, and it is unlikely that any such requirement would be held to exist under the VICRA. However, an employer may agree to allow such an individual to telework, or offer other accommodations on a voluntary basis. Employers that elect to do so may want to consider adopting clear guidelines to avoid potential discrimination or retaliation claims from other employees who may also desire similar accommodations. A written policy that is distributed to all employees, along with appropriate training to educate management and supervisory personnel about the existence and nature of the policy, can aid in minimizing the potential for well-intentioned actions to generate claims of unfair treatment.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs. Ogletree Deakins will post additional tips for employers doing business in the U.S. Virgin Islands in 2020 on the firm’s U.S. Virgin Islands blog.