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Accommodating at-risk workers during COVID-19: EEOC issues new guidance

May 21, 2020 9660

Understand workplace protections and rules that can help employers navigate the impact of COVID-19 in the workplace and accommodate employees at high risk.

The Equal Employment Opportunity Commission has updated its guidance on the Americans with Disabilities Act to include information on accommodating employees who are at high risk for severe illness from COVID-19. The new guidance, reflected in the Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, consists of workplace protections and rules that can help employers implement strategies to navigate the impact of COVID-19 in the workplace.

In California, the Department of Fair Employment and Housing requires employers of five or more to provide reasonable accommodations when appropriate.

Defining at-risk workers

Practice owners have an obligation to provide a safe work environment, which starts with understanding any underlying or preexisting conditions that an employee has disclosed and that place the employee in the at-risk worker category under the law.

According to the U.S. Centers for Disease Control and Prevention, employees with conditions that put them at a higher risk for severe illness from COVID-19 include individuals who are immunocompromised, as well as people with:

  • Chronic kidney disease who are undergoing dialysis
  • Chronic lung disease
  • Diabetes
  • Liver disease
  • Moderate to severe asthma
  • Severe obesity (body mass index of 40 or higher)

The Americans with Disabilities Act typically prohibits an employer from making disability-related inquiries and requiring medical examinations of current employees, except under limited circumstances, such as, when a pandemic becomes severe according to local, state or federal health officials.

As long as the pandemic is considered a “direct threat”, as defined by CDC and public health officials, employers are allowed to ask employees to disclose if they have a medical condition that the CDC as identified makes them higher risk for complications related to the COVID-19 illness. This documented information should be maintained in the employee’s confidential personnel record.

Handling reasonable accommodations requests

When an employee asks for a reasonable accommodation, employers are required to engage in a timely and interactive accommodation process. Essentially, the employer must talk with the employee or applicant and discuss the disability and accompanying restrictions. Together, employer and employee should identify which essential functions the employee cannot perform and then share possible ways to accommodate.

The employer may discuss with the employee:

  • How the disability creates a limitation
  • How the requested accommodation will effectively address the limitation
  • Whether another accommodation could solve the issue
  • How the proposed accommodation will enable the employee to continue performing the job's essential functions

Additionally, if an employee requests an accommodation for a disability that is not obvious, the employer may request medical documentation, including health records or prescriptions if doctors are difficult to reach. During the current pandemic, it may be difficult for employees to obtain medical documentation of a COVID-19-related disability from their medical provider. Employers are encouraged to work with employees to grant the accommodation until the medical documentation can reasonably be obtained.

Understanding and applying the ‘direct threat’ standard

If an employer is considering keeping the employee out of the workplace because they are part of the higher-risk group, the EEOC requires:

  • Application of the "direct-threat standard." Under this standard, an employee must pose a direct threat to themselves or to others to be excluded from the worksite. The EEOC defines direct threat in its guidance on pandemics and Americans with Disabilities Act as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."
  • An individualized assessment based on reasonable medical judgment about the employee's disability — not the disability in general — using the most current medical knowledge and the best available objective evidence.

Employers are encouraged to first work with the employee on creating reasonable accommodations within the workplace; however, if that is not possible, the employer should consider other accommodations such as telework, leave or reassignment.

If the employee does not request a reasonable accommodation, the employer must offer to initiate an interactive process if the employer becomes aware of the possible need for an accommodation. That awareness might come through a third party or by observation or because the employee has exhausted leave benefits but still needs reasonable accommodation.

For additional guidance on creating a safe, accessible workplace, visit CDA’s Back to Practice Resource Center.