Return To the Office…? Part 1: The EEOC Issues Additional Guidance for High Risk Employees
As some employers begin plans for reopening their workplaces, many have concerns on how to manage employees with preexisting conditions that may make them more susceptible to COVID-19. A poll taken after one of Reed Group’s recent webinars showed that the top priority for employers was implementing safety measures for employees. Some of those concerns were addressed on May 7, 2020 when the EEOC issued a revised update to its Technical Assistance Guidance on Disability Accommodation which provides guidance on how to respond to employees who are more susceptible to COVID-19. The revision came in response to concerns that previous guidance issued two days before was misinterpreted.
The ADA requires employers to provide a reasonable accommodation that allows an employee with a disability to perform the essential functions of their job. An accommodation can take the form of a job modification, a leave of absence or a flexible work schedule. In the case of high–risk employees, the CDC has provided a list of conditions that make an individual more susceptible to COVID-19 and may entitle them to an accommodation:
- People 65 years and older
- People who live in a nursing home or long-term care facility
- People of all ages with underlying medical conditions, particularly if not well controlled, including:
- People with chronic lung disease or moderate to severe asthma
- People who have serious heart conditions
- People who are immunocompromised
- People with severe obesity (body mass index [BMI] of 40 or higher)
- People with diabetes
- People with chronic kidney disease undergoing dialysis
- People with liver disease
In another section of their guidelines the CDC suggests that pregnant women may also be more susceptible to COVID-19. However, simply being over 65 or pregnant does not necessarily make an employee eligible for an accommodation under the ADA. The employee must still demonstrate that they have an underlying medical condition that would make them more susceptible or vulnerable to COVID-19.
Undue Hardship Under the ADA
An employer may deny an accommodation if it imposes an undue hardship to the organization. The guidelines allow employers to consider whether the accommodation creates “significant difficulty or expense”. The EEOC recognizes that during a pandemic it may be much more difficult to conduct a needs assessment or to acquire certain items necessary for an accommodation. For example, it may be more difficult to accommodate employees with “temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.” If an accommodation poses an undue hardship, the EEOC encourages employers and employees to work together to find a less burdensome alternative.
Another aspect of the undue hardship analysis is the “direct threat” defense. The ADA specifically allows employers to “establish qualification standards that will exclude individuals who pose a direct threat—i.e., a significant risk of substantial harm—to the health or safety of the individual or of others”. In a pandemic situation, the employer may have to deny an accommodation because the employee’s presence poses a risk of harm to others in the workplace. However, the employer’s approach in making that determination should be no different than the approach taken in past accommodation assessments. Begin the interactive process and don’t assume the risk exists simply because the employee may have a condition that makes them more susceptible to COVID-19. If during the interactive process, objective and medically supportable documentation confirms that the employee poses a substantial risk of harm in the workplace, the employer may have grounds to deny the accommodation. In addition, the review must be individualized so the decision can’t be based solely on the fact that the employee has or may have the condition.
Maintaining a Safe Work Environment
The ADA wants employers to “balance the interests of employees with disabilities with the legitimate interests of employers in maintaining a safe workplace.” Listed below are some of the steps an employer can take:
- Employers may take employees’ body temperatures as a method preventing the spread of the virus.
- Employers can make disability related inquiries and conduct medical examinations that are job related and consistent with business necessity.
- Employers can require the use of safety equipment and mandate social distancing in the workplace.
- Employer’s may delay the start date of an applicant who has been diagnosed with COVID-19 or has COVID-19 symptoms.
- Employers may require a note from a health care provider certifying that an employee who had COVID-19 or its symptoms is fit to return to work.
- Employers may shorten the interactive process to grant the employee’s requested accommodation
The EEOC encourages employers to monitor the most current information on maintaining workplace safety from the CDC, the World Health Organization (WHO), and state/local public health authorities. The EEOC states that although the federal workplace anti-discrimination laws, including the ADA, continue to apply during the COVID-19 pandemic, employers are permitted to follow the guidelines and suggestions made by these public health organizations without violating the federal employment laws. If in doubt, employers should consult with their legal counsel to ensure their practices are compliant with all applicable laws and regulations.
If you’re looking for assistance managing claims or to ensure compliance across your organization, Reed Group has solutions for you. Check out our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.