As employees return to workplaces, employers should have a plan in place to address workers with underlying health conditions that put them at greater risk for coronavirus (COVID-19) complications. In recent guidance, the Equal Employment Opportunity Commission (EEOC) addressed employers’ obligations under the Americans With Disabilities Act (ADA). Generally speaking, employers are not obligated to provide accommodations under the ADA unless an employee requests one. However, there may be situations where an employer must initiate  what is known as the interactive process without receiving a request for accommodation from the employee. At the same time, employees at greater risk for serious COVID-19 complications can’t be excluded from the workplace unless the employee’s disability (i.e. underlying condition) poses a “direct threat” to his or her health that can’t be eliminated or reduced by reasonable accommodation.

“It is important that employers understand that the ADA does not allow them to act against employees solely because the employee has a CDC-listed underlying medical condition,” EEOC Legal Counsel Andrew Maunz said in a press statement. “Employers must do a thorough direct threat analysis, which includes an individualized assessment based on relevant factors and a determination of whether the threat can be reduced or eliminated through a reasonable accommodation.”

Request for a Reasonable Accommodation

In the publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the EEOC has provided employers COVID-19 guidance with respect to the ADA and the Rehabilitation Act. Its latest additions address employees with medical conditions that the Centers for Disease Control and Prevention (CDC) has stated may put individuals at higher risk for severe illness from COVID-19.

First, the EEOC advises that employees must notify employers that they need a change for a reason related to a medical condition. As with other accommodation requests under the ADA, individuals may request an accommodation in conversation or in writing and do not need to use the term “reasonable accommodation” or reference the ADA in order for the request to be valid. If the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

Excluding High-Risk Employees from the Workplace

The EEOC’s latest guidance also addresses when an employer knows that an employee has a high-risk medical condition and is concerned about the health risks of the employee returning to the workplace, but the employee has not requested accommodation. As the EEOC explains, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if he or she gets COVID-19. 

Rather, the  ADA authorizes such action only when the employee’s disability poses a “direct threat” to his or her health that can’t be eliminated or reduced by reasonable accommodation. The EEOC also notes that this is a high bar. Under 29 C.F.R. section 1630.2(r), a direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health.

With regard to COVID-19, the EEOC guidance specifically advises:

A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider 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.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties.  A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).  The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.  This can involve an interactive process with the employee.  If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).  An 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. 

Accommodations for Employees with Underlying Medical Conditions

The nature of the COVID-19 accommodation will depend on the employee’s job duties and the design of the workspace, among other factors unique to the situation. As a starting point, the EEOC guidance offers several examples.

Employees may be provided with additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, installing a barrier or increasing the space between an employee with a disability and others.  The EEOC also suggests that a reasonable accommodation may involve eliminating or modifying particular “marginal” functions, i.e. less critical or incidental job duties as distinguished from the “essential” functions of a particular position.  Additional accommodations may include temporarily changing the employee’s work schedule to reduce contact with fellow employees or commuters; or moving the employee’s work location, i.e. relocating a person to the end of a production line rather than in the middle of it if that provides more social distancing.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Sarah Tornetta, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.