Slowly, tentatively, we are returning to our workplaces following state and local COVID-19 stay at home orders targeting slowing the spread of the disease. As we do, new questions arise daily about how we as employers must respond to keep our workforces healthy and safe without creating new problems by unnecessarily singling out employees with disabilities or pre-existing health concerns.
On May 5th, and again on May 7th, the Equal Employment Opportunity Commission (EEOC) updated their guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” which now provides guidance on return to work health and safety measures as they may impact persons with disabilities under the Americans with Disabilities Act (ADA) and persons having conditions identified as posing greater risks.
Employees who have previously identified the need for accommodations for a disability may need additional or different accommodations at this time. For example, if your return to work plan will require employees to wear personal protective gear, an employee may request an accommodation to allow them to perform the essential functions of their job. Just like before the COVID-19 crisis, this triggers the employer’s duty to engage in the interactive process to see if an accommodation can be given. Accommodations could include measures such as modifications to the PPE, temporary modification of the employee’s job duties, schedule or work location including telework where available. Note that additional accommodations or modifications to accommodations may only need to extend for the time that COVID-19 continues to pose a significant risk.
The trickier case is presented by new at-risk categories that have been identified as this disease has become better known. The Centers for Disease Control (CDC) has advised that people aged 65 or over as well as persons of any age who have serious medical conditions such as chronic lung disease, asthma, immune disorders, cancer, diabetes, and heart disease–among others–may be at a higher risk for having severe illness from contracting COVID-19.
Employees in these higher risk categories—or someone on their behalf such as the employee’s doctor—must let the employer know that they need some kind of change or accommodation relating to COVID-19 risk for a reason that is related to one of these underlying conditions. Whether the request is made by the employee or by their surrogate, and whether the request is verbal or in writing, the same employer duty to engage in the interactive process is triggered. Under the ADA interactive process, the employer may then ask limited medical questions or seek medical documentation from the employee to help decide if there is a disability and if there is an accommodation that the employer can provide without undue hardship. The EEOC has listed a number of accommodations as examples relating directly to the COVID-19 risks, such as additional or enhanced PPE, additional proactive measures such as erecting a barrier that provides separation for the employee from co-workers or the public, elimination or substitution of marginal job functions, temporary modification of work schedules to reduce contact with others, or moving a person within a facility to provide more social distancing. Remember that the accommodation requested by the employee does not necessarily have to be the accommodation that is granted by the employer, so long as the accommodation offered by the employer allows the employee to perform the essential functions of their job.
What about employees who DO NOT request any kind of accommodation but are known by their employer to be in a high-risk category? The EEOC advises that where the employee does not request any kind of accommodation, the ADA does not mandate any action by the employer. Even if the employer is concerned that the employee’s health may be in jeopardy when he returns to the workplace because of one of the factors the CDC has identified as presenting a high risk for severe illness in the event the employee contracts COVID-19, an employer may not exclude the employee nor take any other adverse employment action solely because the employee has one of the conditions that place him at higher risk. The only way that the employee could be excluded under the ADA is if the condition poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation. The employer must then conduct the stringent “direct threat” analysis under ADA regulations to show that the employee has a disability that poses a “significant risk of substantial harm” to his own health. Further, this analysis must be based on an individualized assessment about this employee’s specific risk—not just the fact that the condition appears on the CDC list. Even if a direct threat can be shown through this analysis, the employee still cannot be excluded unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk to the employee without causing undue hardship to the employer. The employer must also consider other alternatives such as telework, leave, or reassignment. As the EEOC states, “[a]n employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.” If you are considering excluding an employee on a direct threat basis, you should consult counsel to assist in your direct threat and accommodation analysis before taking any adverse action.
You can read the EEOC Updated Guidance at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, and particularly paragraphs G(1) through G(6). Stand by for more updates as the EEOC works through these and other COVID-19 issues as they develop.
If you have questions about labor and employment issues, contact your DSV attorney or Melanie M. Dunajeski at firstname.lastname@example.org.
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***