As many businesses begin to reopen in the midst of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission recently updated its guidance surrounding the Americans with Disabilities Act and treatment of employees who are at a higher risk of harm from contracting COVID-19. The update was prompted after the EEOC claimed its earlier guidance “was… misinterpreted in press reports and social media.”
Under the ADA, employers are permitted to require that employees not pose a “direct threat” to the health or safety of themselves or others. For example, employers may send an employee home who is displaying symptoms of the coronavirus because the employee poses a direct threat (spreading COVID-19) to other employees. However, the EEOC guidance addresses another application of the direct threat analysis for employees who are asymptomatic but, due to a pre-existing disability, are at a greater risk of harm if they contract COVID-19. In this situation, employers may refuse to return an employee to work if the employee is a direct threat to him or herself as a result of a disability and no reasonable accommodation exists that would either eliminate the risk or reduce it to an acceptable level.
As government restrictions ease and businesses begin to resume operation, some employers are faced with the question of whether it is possible to return vulnerable employees to work safely. According to the updated EEOC guidance:
If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, 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 him at “higher risk for severe illness” if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.
The updated guidance describes that the direct threat requirement is a high standard that cannot be met based on broad demographic data alone. Instead, the EEOC advises that employers must conduct an “individualized assessment” based on reasonable medical judgment about the employee’s disability. Employers that perform an individualized assessment of the employee’s disability must consider many factors, including the severity of the pandemic in a particular area, whether the employee’s disability is well-controlled, the employee’s particular job duties, and the likelihood that the employee would be exposed to the virus while at the worksite.
An employer may only stop an employee from returning to work if, after conducting the individualized assessment, the facts support the conclusion that the employee poses a significant risk of substantial harm to him or herself that cannot be reduced or eliminated by reasonable accommodation.
Given the sensitive nature of the individualized assessment, the fact that medical documentation may be provided by employees and sought by employers as part of that assessment, and the potential risks for ADA violations, employers should consider contacting legal counsel before making medical inquiries of employees and/or refusing to return an employee to work under these circumstances. Should that need arise for your organization, K|W|W’s attorneys are ready and available to answer any legal or HR questions you may have during these unprecedented times. As always, your workforce is our priority.
The K|W|W Team