EEOC Issues New Return-to-Work Guidance for Employers on ADA Implications of COVID-19

By Katherine L. Wood, Esq.

As companies make plans to return to the workplace, employees and employers will be confronted with questions on how to maintain a safe work environment for individuals with underlying medical conditions that place them at “higher risk for severe illness” if they get COVID-19. This week, the Equal Employment Opportunity Commission (“EEOC”) provided updated guidance to employers on issues related to: (1) employee requests for reasonable accommodations under the Americans with Disabilities Act (“ADA”); (2) individuals at high risk for contracting COVID-19 who have not requested accommodations; and (3) potential undue burdens on employers. The EEOC’s guidelines, including the recently updated guidance discussed here, can be found here.

Requests for Reasonable Accommodations

The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions, such as chronic lung disease or serious heart conditions, that could create a higher risk of a person developing a severe illness from COVID-19, the disease caused by the novel coronavirus.  According to the EEOC, employees who require a reasonable accommodation because they have an underlying condition which puts them at high risk for contracting COVID-19 should make a reasonable accommodation request to their employer.  The request, which may be oral or in writing, should communicate to the employer that the employee has a medical condition which requires an accommodation.  The request may be made by the employee or a third-party, such as the employee’s physician, and does not necessarily need to include references to the ADA or the phrase “reasonable accommodation.” 

After the employer receives the employee’s request, the employer may ask for supplemental information or documentation to assist in deciding whether the individual has a qualified disability under the ADA, and if a reasonable accommodation can be provided. 

This guidance should sound familiar to employers, as it essentially tells them to treat such requests for accommodations just as they would treat an accommodation request that is unrelated to COVID-19. 

High Risk Individuals Who Have Not Requested Accommodations

The new EEOC guidelines also address situations where the employer has knowledge that an employee may be at high risk for contracting COVID-19, but the employee has not requested an accommodation.  In such a situation, the employer does not want the employee to get sick, but the employer must be mindful not to exclude the employee or treat the employee differently due to his/her medical condition, as this may lay the groundwork for a discrimination claim.

The EEOC guidance on this point reminds us that employers cannot exclude or take adverse action against the employee solely because the employee has a condition that places him/her at high risk for contracting COVID-19.  Taking such an action is only allowed if the employee poses a direct threat to his/her health and when the direct threat cannot be eliminated or reduced by a reasonable accommodation.

Showing that an individual is a direct threat is no easy feat for an employer and requires that the employer show that the employee has a disability which poses a “significant risk of substantial harm” to the employee’s own health. 

The direct threat analysis must be individualized to the specific employee in question, and requires the employer to look at numerous considerations such as: “the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.”  Due to the complex and difficult nature of the direct threat analysis, we highly recommend consulting with experienced employment law counsel to assist with such an analysis.

In the event that the employer, along with its legal counsel, determines that an employee poses a direct threat, the employer is still prohibited from barring the employee from the workplace.  Instead, the employer must consider whether there are reasonable accommodations that allow the employee to be present at the workplace and perform the essential functions of his/her job with reduced or eliminated threat.  If this analysis leads to the conclusion that the employee cannot be present at the workplace, the employer must consider other accommodations, such as teleworking, leave, or reassignment to a safer location, to allow the employee to continue performing his/her job duties. 

If, and only if, the employer has gone through all of these steps, and the employee still poses a direct threat that cannot be reduced or eliminated by accommodation, the employer may only then bar the employee from entering the workplace.

Employers should be aware that a previous version of the guidelines on this topic were removed by the EEOC after being posted for a short period due to “misinterpret[ation] in press reports and social media.”  The now-removed guidance was less detailed with regard to the direct threat analysis and stated that employers may make disability-related inquiries about an employee’s health in certain situations.  Employers who read the previous version of this guidance should disregard it and follow only the now published guidance and/or the advice of legal counsel.

Examples of Potential Acceptable Accommodations

Finally, the EEOC has offered some ideas to employers for potential accommodations for employees who may be at a high-risk for contracting COVID-19.  Accommodations approved by the EEOC in its guidelines include:

  • “[A]dditional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;”
  • “…[A]dditional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others;”
  • “…[E]limination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position);” and
  • “…Temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).”

However, employers should keep in mind that this list of potential accommodations is not all-inclusive.  Reasonable accommodation analyses must include consideration of the employee’s job duties and the layout of the workspace.  As always, employers should discuss ideas for reasonable accommodations with the employee who will be utilizing them.  The EEOC encourages employers to be “creative and flexible” when considering reasonable accommodations.

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