Lawyer advises Arizona employers to tread carefully when rehiring

May 7, 2020, 2:16 PM
(AP Photo)...
(AP Photo)
(AP Photo)

PHOENIX – Employers deciding which workers to bring back as Arizona businesses prepare to reopen will have to keep federal law in mind over the next weeks.

Retail stores, beauty salons and barber shops can begin to open Friday under certain conditions per Gov. Doug Ducey’s stay-at-home order, which went into effect March 31 to mitigate the threat of coronavirus and was extended until May 15 with modifications.

On Monday, restaurants meeting state health guidelines can resume dine-in service on a limited basis.

Businesses can’t focus on just bringing back young, healthy staff, attorney John Balitis of Phoenix told KTAR News 92.3 FM.

“Even an employer that thinks it’s doing the right thing and says, ‘You know, I think I’m going to put older workers, pregnant women, people, or who have diabetes, people who have asthma, at the end of the line’ … workers in those protected classes who want to return … are going to have potentially a valid claim for discrimination,” Balitis said Wednesday.

“The Equal Employment Opportunity Commission (the federal agency that enforces anti-discrimination laws), has made very clear in guidance that it has issued since the pandemic started, that covered employers cannot use protected characteristics as litmus tests for deciding who to bring back to work,” Balitis said.

There are options, he said.

“If an employer is faced with a worker who says, ‘I have an underlying condition that puts me at higher risk … and I don’t want to come back yet because I think I might endanger myself,’ if that employer is covered by the [American Disabilities Act], the employer needs to consider that in deciding whether or not allowing that worker to work remotely is a reasonable accommodation,” Balitis said.

Arizona workers who are worried about exposure to the coronavirus could choose not to return to their jobs and still keep their unemployments benefits.

“What really constitutes an adequate risk of exposure or infection? It certainly doesn’t include somebody who is just worried and feels uncomfortable returning to work,” Balitis said.

KTAR News 92.3 FM’s Griselda Zetino contributed to this report.

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Lawyer advises Arizona employers to tread carefully when rehiring