All information in this COVID-19 Response Resource issue is effective as of May 12, 2020.
In many states’ reopening guidance, employers are directed to accommodate employees who are at high risk of being infected by the novel coronavirus or developing serious illness from COVID-19. How should employers accommodate such high-risk individuals? What if an employee in a high-risk population does not want to be accommodated?
The Equal Employment Opportunity Commission (EEOC) recently issued guidance regarding these issues as they relate to individuals with disabilities under the Americans with Disabilities Act (ADA).
An Employer Cannot Force a Disabled Employee Out of the Workplace Due to Covid-19 Infection Risk Unless there is Significant Risk of Substantial Harm to the Employee
The EEOC confirmed that if an employee who is at high risk for serious illness because of an underlying disability does not request a reasonable accommodation, the ADA does not mandate that the employer take any action.
Further, even if the employer does not want the employee to return to work because of a concern about the employee’s health, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has an underlying disability that places the employee at higher risk for serious illness if he or she contracts COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.
In order to demonstrate that an employee poses a “direct threat” to his or her health, an employer must show that the individual has a disability that poses a “significant risk of substantial harm” to his own or her own health. A direct threat assessment cannot be based solely on the underlying condition in general; the determination must be an individualized assessment based on a reasonable medical judgment about the specific employee’s disability using the most current medical knowledge or on the best available objective evidence. The ADA 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, the employee’s own health (for example, is the employee’s disability well-controlled); and his or her 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, would also be relevant.
An Employer Must Provide an Accommodation to Disabled Individuals
Even if an employer determines that an employee’s disability poses a direct threat to his or her 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 (unless the accommodation would cause undue hardship to the employer). 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. If there are no 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 or herself that cannot be reduced or eliminated by reasonable accommodation.
Types of Accommodations Required Under the ADA
Accommodations for disabled individuals with disabilities related to COVID-19 may include 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, erecting a barrier that provides separation between an employee with a disability and coworkers and the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions – less critical or incidental job duties as distinguished from the “essential” functions of a particular position. In addition, accommodations may include temporary modification of work schedules, if that decreases contact with coworkers and the public when on duty or commuting, or moving the location of where one performs work, for example, moving a person to the end of a production line rather than in the middle of the line, if that provides more social distancing.
While these recommendations regarding accommodations were specifically issued by the EEOC in relation to individuals with disabilities, they are also relevant for employers when making decisions regarding accommodating other individuals who are in high-risk populations because of reasons other than disability, such as age.
If you have any questions about how to properly accommodate employees in high-risk populations when bringing them back to work, please contact Sean A. Monson by calling (801) 536-6714 or send an email to smonson@parsonsbehle.com or call Christina Jepson at (801) 536-6820 or send an email to cjepson@parsonsbehle.com.
