On May 5, 2020, and again two days later, the Equal Employment Opportunity Commission (EEOC) updated its guidance to employers for handling return to work issues related to employees with underlying medical conditions that make them especially likely to develop severe symptoms if they contract COVID-19. The EEOC’s guidance addresses scenarios where (1) an employee with an underlying medical condition requests a reasonable accommodation or (2) an employer seeks to prevent such employees from posing a direct threat to themselves or others. The guidance also discusses recommended accommodations for employers to consider for employees in COVID-19 high-risk categories.

Background

The Americans with Disabilities Act (ADA) requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when an accommodation would cause an undue hardship. In general, the ADA also prohibits employers from making disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. 

A disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based upon objective evidence, that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition or (2) an employee will pose a direct threat due to a medical condition. The ADA defines a “direct threat” as a “significant risk to the health and safety of others that cannot be eliminated by a reasonable accommodation.”

Defining “Serious Underlying Medical Conditions”

The revised EEOC guidance follows recommendations from the CDC regarding categories of individuals who are at high-risk individuals for severe illness from COVID-19. The CDC states that COVID-19 creates a higher risk for severe illness for older adults (over 65) and people with “serious underlying medical conditions.” The CDC has included in its list of serious underlying medical conditions the following: chronic lung disease, severe asthma, serious heart conditions, immunocompromised systems, severe obesity (BMI 40 or higher), chronic kidney disease (dialysis), and liver disease. 

For individuals falling in these age or medical condition categories, the CDC encourages employers to “support and encourage options to telework if available” and offer such workers duties that “minimize their contact with customers and other employees.” 

The EEOC’s Updated Guidance

Following the CDC’s recommendations, the EEOC’s updated guidance addresses how employers should treat employees with serious underlying medical conditions.

Employee Requests for Reasonable Accommodations
The EEOC’s new guidance clarifies that, as a prerequisite to receiving a reasonable accommodation, an employee with a CDC-listed medical condition must first inform the employer that he or she needs an accommodation for a reason related to the medical condition. This request need not be in writing or even reference the ADA. The employer may ask questions or seek medical documentation to help determine whether the individual has a disability and whether a reasonable accommodation (such as telework) that can be provided without undue hardship to the employer. 

The Employer’s Ability to Exclude Employees from the Workplace – A High Standard
When an employee with a CDC-listed underlying medical condition does not request a reasonable accommodation, the ADA does not mandate that the employer take any action. If, however, the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the EEOC warns that the ADA does not allow the employer to exclude the employee or take any other adverse action solely because the employee has a CDC-listed medical condition. According to the EEOC, such a drastic action would be allowed only if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by a reasonable accommodation. 

The EEOC considers the ADA’s “direct threat” requirement a “high standard.” As stated above, a “direct threat” is a “significant risk to the health and safety of others that cannot be eliminated by a reasonable accommodation.” In what may be the most important part of the EEOC’s updated guidance, the EEOC provides the analytical framework for how an employer must determine whether a direct threat exists. According to the EEOC, a direct threat assessment cannot be based solely on a medical condition being on the CDC’s list. Rather, this 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.” 

Relevant factors to be considered in a “direct threat individualized assessment” include (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. According to the EEOC, analyzing these factors will likely include considerations based on the severity of the pandemic in the particular area, the employee’s health, and his or her job duties. Employers should also consider the likelihood that an individual will be exposed to COVID-19 at the worksite, including measures that the employer has taken to protect all workers from contracting COVID-19.

The Interactive Process
Even if an employer determines that an employee’s disability poses a direct threat to the employee in the workplace, the employee cannot be excluded or suffer any adverse action unless a reasonable accommodation cannot be provided absent undue hardship. This analysis may involve an interactive process with the employee to determine 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 performing essential job functions. 

Examples of Accommodations
The EEOC recommends that the employer consider accommodations such as telework, leave, or reassignment to a safer position. Accommodations may also include additional or enhanced protective gowns, masks, gloves, or other gear beyond what an employer generally provides to its employees. Other accommodations may include protective barriers or the elimination or substitution of “marginal” functions. Employers should also consider temporarily modifying the employee’s job duties, work schedule, or work location. Employers and employees are advised to be “creative and flexible” in identifying reasonable accommodations. The EEOC recommends the Job Accommodation Network as a resource that may help to identify possible accommodations. 

Finally, the EEOC cautions that an employee with a CDC-listed medical condition may be barred from the workplace only if, after the employer engages in this full “direct threat” analysis, the “facts support the conclusion that the employee poses a significant risk of substantial harm to himself [or herself] that cannot be reduced or eliminated by reasonable accommodation.”

Conclusion

The EEOC’s updated May guidance requires that employers must treat each employee in COVID-19 high-risk categories individually and provide for reasonable accommodations when possible. This guidance reflects the reality that COVID-19 poses significant risks for certain employees, and employers should, where possible, work with these employees to minimize the risks to their health.

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