Update (5/7/20): On May 7, 2020, the EEOC re-issued guidance concerning what actions an employer may take if it knows that an employee has a medical condition placing him/her at a higher risk for severe illness if he/she gets COVID-19, and thus is concerned about the employee’s return to the workplace, but the employee has not requested any accommodation. (This is the second item discussed in our original post below.) The agency re-issued its guidance on this topic after it indicated that its earlier guidance, released on May 5, had been misinterpreted.
In the revised guidance, the EEOC clarified that if an employee does not request an accommodation, an employer is under no obligation under the ADA to take any action. However, the employer may not exclude the employee from the workplace or take any other adverse action solely because the employee has particular vulnerabilities, unless the employee’s disability is a “direct threat” to the employee’s health. The EEOC explained that the “direct threat” requirement “is a high standard,” which requires that the employer show that the employee’s condition poses a “significant risk of substantial harm” to the employee. That determination must be based on an individualized assessment using the most current medical knowledge and/or best available objective evidence. The guidance provides specific examples of factors employers must consider as part of the “direct threat” analysis.
Importantly, the guidance also explains that even if an employer concludes that the employee’s disability poses a direct threat to his or her health, the employer cannot exclude the employee from the workplace unless there is no way to provide a reasonable accommodation. Employers must consider if there are ways to reduce risk to the employee to permit him/her to return to work and perform the essential functions of the positions, such as by reassignment or telework.
The upshot of all of this is that an employer cannot exclude an employee from the workplace or otherwise not permit an employee to work due to an employee’s disability placing him/her at greater risk from COVID-19 exposure until it has gone through this entire analytical process. The guidance appears to make plain that, from the EEOC’s perspective, it will be a rare circumstance where an employer can prohibit a COVID-19 vulnerable employee from returning to work entirely, or otherwise not permit the employee to work at all.
Update (5/6/20): On May 6, 2020, the EEOC withdrew from its technical guidance the Q&A discussed below addressing accommodation of employees with underlying medical conditions under the “direct threat to self” analysis, indicating that it had been “misinterpreted in press reports and social media.” The EEOC indicated that it is revising the information to ensure it is clear. We will update this post with the revised guidance once made available by the EEOC.
As employers begin the process of reopening their businesses, they are likely to confront situations where some employees express a reluctance to return to the workplace due to particular vulnerabilities and concerns about potential COVID-19 exposure. As part of its reopening plan, every employer should be implementing social distancing and workplace hygiene procedures to mitigate the risk of infection. However, some employees may have particular, individual medical conditions that place them at a higher risk if infected, and thus may require additional safeguards. On May 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its informal coronavirus guidance to address this issue, with three new Q&As addressing accommodation of persons at greater risk for severe illness due to COVID-19.
First, the EEOC clarified that, as in any non-COVID-19 related scenario, it is the employee’s obligation to inform his/her employer of the need for an accommodation due to medical condition, either in conversation or in writing. The employer may then ask questions or seek medical documentation to assess whether the employee has a disability under the Americans with Disabilities Act (ADA) and if that disability can be reasonably accommodated.
Second, the EEOC explained that an employer cannot bar an employee from the workplace even if it already knows that an employee has a medical condition that puts him/her at a higher risk for severe illness is he/she gets COVID-19 (for example, due to a prior disability accommodation request for the condition). Although an employer can bar employees with COVID-19 symptoms because they present a direct threat to coworkers, the analysis is different when dealing with a “direct threat to self.” That requires an individualized assessment of the employee’s particular medical condition – including the duration of the risk, nature and severity of the potential harm, likelihood the harm will occur, and imminence of the potential harm, as well as whether the employee can, notwithstanding the risk, perform the essential functions of the job without threatening his/her health, with or without accommodation. On this last point, the EEOC further explained that an employee’s medical condition is not considered a direct threat to themselves if the employer can reduce or eliminate the threat through a reasonable accommodation. Those accommodations could include adjustments to the workplace, such as relocating or reassigning the employee, or other options, such as leave or telework, particularly if the employer has granted telework permission to similarly situated employees without disabilities. Finally, the EEOC also clarified that any direct threat individualized assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence, both about the disability and transmission of COVID-19.
Last, the EEOC provided some examples of accommodations that, assuming they do not present an undue hardship, may eliminate or sufficiently reduce a direct threat to an employee who is particularly vulnerable to COVID-19 due to a medical condition. Those examples include providing additional or enhanced personal protective equipment (PPE), placing physical barriers to separate the vulnerable employee from coworkers or the public, eliminating, reducing, or substituting less critical, non-essential job functions that create more risk of exposure, modifying work schedules, or moving employee workstations.
It is a near certainty that almost every employer will confront this sort of situation – an employee reluctant to return to work due to a particular medical condition (COPD, asthma, congestive heart disease, cancer, etc.) – as operations resume. The EEOC’s guidance makes plain that employers will need to address these situations on a case-by-case basis. It also confirms that employers will need to be creative and nimble as they address them to provide as much opportunity as possible for vulnerable employees to continue to work.