EEOC cautions employers when considering actions affecting individuals with underlying medical conditions

Woman wearing mask while looking at her phone

On May 5, 2020, the EEOC provided additional guidance to employers on employee accommodation issues that may arise in the context of return to work.

The updated guidance focuses on employees who may have an underlying medical condition that places them at a higher risk for severe illness if they contract COVID-19. The EEOC makes clear that if such an employee does not request a reasonable accommodation, the ADA does not require that an employer take any action. So, if an employer simply has knowledge of an employee’s underlying medical condition that could place him at higher risk, an employer is not mandated to do anything unless and until the employee requests an accommodation. If an employee with an underlying medical condition requests an accommodation, the employer should engage in the interactive process to determine what assistance can be provided. This may include asking questions or seeking medical documentation to determine if the condition is in fact a disability and the extent of the employee’s restrictions and accommodation needs.

Importantly, however, the EEOC addressed the situation where an employer is aware of an employee’s underlying medical condition that places him at a higher risk, but the employee has not requested any accommodation. An employer cannot exclude an employee from work or take any other adverse action against them solely because he has a disability that the CDC identifies as placing him at higher risk of severe illness if he contracts COVID-19. Such action would only be permitted if the underlying disability poses a “direct threat” to the employee’s health and that direct threat cannot be eliminated or reduced by a reasonable accommodation.

The EEOC reminds employers that the “direct threat” standard under the ADA is a high threshold. An employer would have to prove that the individual has a disability that poses a significant risk of substantial harm to his own health pursuant to federal regulations. The direct threat assessment cannot be based solely on the fact that the employee’s condition is on the CDC’s list. The employer must still undergo an individualized assessment, taking into account reasonable medical judgment of the employee’s disability, 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.  This will likely include an analysis of the pandemic’s severity in the particular area and the employee’s job duties. It would also be relevant to consider the likelihood of exposure at the worksite.

Even if after undertaking an individualized assessment, the employer determines that the employee’s underlying disability poses a direct threat to his health, this does not end the inquiry. An employer still cannot exclude the employee from the workplace or take other adverse action unless there is no way to provide a reasonable accommodation absence undue hardship. The employer would determine whether there are any reasonable accommodations that would eliminate or reduce the risk to the employee and make it safe for him to return to the workplace and perform essential job functions by engaging in the interactive process. If there are no accommodations that would allow the employee to return to the workplace, the employer would need to consider other accommodations, such as telework, a leave of absence, or reassignment.

A non-exhaustive list of accommodations that may eliminate or reduce a direct threat to the employee include use of protective gowns, masks, gloves, or other gear, installing barriers, elimination of non-essential/marginal job functions, and temporary modification of work schedules.

Ultimately, the EEOC states, “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 that cannot be reduced or eliminated by reasonable accommodation.”

Therefore, employers should not make any assumptions about an individual’s underlying medical condition, and should not take any action to exclude such an employee from the workplace without undergoing the required individualized assessment and interactive process, as set forth above.

As a reminder, individuals ill with COVID-19 symptoms can still be excluded from the workplace without any violation of the ADA. This is because based on current guidance from the EEOC and the CDC, individuals with the virus pose a direct threat to the health of others.