Dismissing its prior guidance issued just days earlier, the Equal Employment Opportunity Commission (“EEOC”) published on May 5th revised guidance in a Q&A format stating that excluding workers from the workplace who have medical conditions recognized by the Centers for Disease Control (“CDC”) as putting them at higher risk for severe illness if they contract COVID-19 violates the Americans with Disabilities Act (“ADA”) unless they pose “a direct threat to self” that cannot be mitigated with reasonable accommodation.
The EEOC characterized this direct threat requirement as a “high standard.” The determination as to whether a direct threat exists must be based upon an individual assessment considering “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 Commission stated the ADA requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that such harm will occur and the imminence of the potential harm. Analysis of these factors “will likely include” consideration of the severity of the pandemic in a particular area, the employee’s own health (i.e., whether his/her disability is well-controlled), and the employee’s specific job duties.
Even if a direct threat can be established by an employer, the employee cannot be excluded from the workplace unless “there is no way to provide reasonable accommodation (absent undue hardship).” Accommodations may include additional or enhanced PPE such as gowns, masks, gloves or other
gear. The Commission also suggests possibly erecting a barrier that separates an employee with a disability from his/her co-workers and/or increasing social distancing, if possible. Another possible reasonable accommodation may be elimination or substitution of marginal job functions (i.e., those incidental or less critical), temporary modification of work schedules to lessen employee interaction, and/or relocating an employee to perform his/her job with lesser possibility of contact with co-workers, such as moving a worker to the end of a production line.
The EEOC made clear that it is an employee’s responsibility to let his/her employer know that he/she has a medical condition perhaps
qualifying as a disability requiring reasonable accommodation. Employees may seek medical certification and guidance to determine disabilities and possible accommodations. The Job Accommodation Network may be able to assist in helping to identify possible accommodations.
Given the EEOC’s guidance here and the highly individualized assessment necessary to avoid running afoul of the ADA, we encourage employers to involve legal counsel when addressing at-risk employees in the workplace.
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