By Rob Gilmore and Melissa Yasinow
With stay-at-home orders lifting across the country, employers are focused on safely and legally re-opening their doors. As we discussed in our April 30 post, COVID-19 & Safe Return to Work, the Equal Employment Opportunity Commission (EEOC) has been issuing guidance on how employers can restart their businesses while complying with the Americans with Disabilities Act, the Rehabilitation Act and other anti-discrimination laws during the COVID‑19 pandemic.
On May 5, 2020, the EEOC updated its guidance to address how employers can accommodate employees who are at a “higher risk for severe illness” if they contract COVID-19. On May 7, the EEOC retracted and reissued its guidance to clarify that employers cannot automatically exclude employees just because they are at a higher risk of severe COVID-19 complications. Instead, employers must conduct a multi-step analysis to determine how, when and if those employees may be prevented from returning to work.
First, employers must determine if the employee has a medical condition, as recognized by the Centers for Disease Control (CDC), that puts them at a higher risk of severe illness from COVID-19. According to the CDC, higher risk groups include those who are 65 years and older and those with:
- Chronic lung disease or moderate to severe asthma;
- Serious heart conditions;
- Compromised immune systems (including those who have undergone cancer treatment or bone marrow or organ transplants, smokers, and those individuals with immune deficiencies or who are taking immune weakening medications);
- Obesity;
- Diabetes;
- Chronic kidney disease, and;
- Liver disease.
Second, if a high-risk employee requests a reasonable accommodation, either through conversation or in writing, the employer must engage in an interactive process to determine if a reasonable accommodation can be provided without undue hardship. In this interactive process, employers may ask their employees questions about their condition and request medical documentation. If an employer is not able to offer a reasonable accommodation without undue hardship—for example, an essential job function cannot be modified, or the pandemic has caused a previously granted accommodation to now be prohibitively expensive—then the employer is not obligated to offer the accommodation.
Third, if an employer knows that an employee belongs to a CDC-recognized high risk group and is concerned that the employee’s health will be jeopardized, then the employer may prohibit the employee from returning to work, but only after conducting an individualized assessment. It should be noted that if the employee does not request an accommodation, the employer is not required to take action. However, regardless of whether the employee requests an accommodation, the employer may still prohibit a known high-risk employee from returning if their disability poses a “direct threat” to their health, and this “direct threat” cannot be eliminated or reduced by a reasonable accommodation without undue hardship.
The “direct threat” requirement is an affirmative defense and a high bar to meet. To satisfy this standard, the employer must show that the employee has a disability that poses a “significant risk of substantial harm” to their own health. Employers cannot end their inquiry solely by noting that the employee has a CDC-recognized condition or by relying on the nature of the disability in general. Instead, the employer must conduct an individualized assessment of the employee’s disability using the most current medical knowledge and/or best available objective evidence.
In making this individualized assessment, the employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood of the potential harm and the imminence of the potential harm. Such analysis will likely require the employer to consider factors unique to both the employer and the employee. Examples include:
- The severity of the pandemic in a particular area;
- The individual employee’s condition (such as a 24-year-old employee with controlled Type 1 diabetes vs. a 70-year-old employee with uncontrolled COPD);
- The employee’s job duties;
- The likelihood of coronavirus exposure at the workplace, and;
- The employer’s general safety precautions for all workers, such as social distancing and mask wearing.
Finally, even if an employer determines that the employee’s disability poses a “direct threat” to their health, the employer still cannot take action adverse to that employee unless the employer determines that it cannot provide a reasonable accommodation to reduce or eliminate the threat without undue hardship. Examples of reasonable accommodations that could eliminate or reduce the threat include PPE usage, the erection of barriers, telework, the elimination of non-essential job functions, temporary schedule changes and moving the location of where the employee performs their work. There is no hard-and-fast rule, however, and employers and employees should both be communicative, creative and flexible in considering reasonable accommodations.
We will continue to monitor the EEOC’s guidelines and other rules that impact employers. For more information on how employees can welcome back employees, including those in high-risk groups, please contact Rob Gilmore (rsg@kjk.com / 216-736-7240), Melissa Yasinow (may@kjk.com / 216-736-7205) or any of KJK’s Labor & Employment professionals.