May 8, 2020 - 4:01 PM
The EEOC issued Guidance for employers dealing with COVID-19 under the Americans with Disabilities Act, the Rehabilitation Act, and other federal laws, as employees returned to work and quickly realized that it created confusion related to requirements of the ADA. The EEOC withdrew that Guidance and reissued it today with clarification (the latest Guidance can be found here
). The problem with the original Guidance was that it was being interpreted to permit employers to turn away returning employees perceived to be vulnerable to contracting the Virus. However, COVID-19 must be treated the same as any other disability.
Here are the rules when dealing with an employee more susceptible to contracting the Virus:
First, Employers must be aware that any underlying medical conditions might, itself, be a disability under the ADA. (e.g., heart or pulmonary conditions).
If an employee does not request a reasonable accommodation, an employer is not required to provide one. That being said, an employer who has reason to know that an employee has a disability has an affirmative duty to inform the employee of their right to request an accommodation and to participate in the interactive process.
An employer's concern for a vulnerable employee alone does not permit the employer to "exclude the employee - or take any other adverse action" unless the employee poses a "direct threat" of harm or safety to himself or others in the workplace. A direct threat is a high threshold and may not be determined on generalities, but rather, must rest on an individualized assessment of the particular employee's situation and work conditions. The employer must determine if there is "a significant risk of substantial harm." This requires a determination of how long the risk will exist, the nature and severity of the risk, the likelihood the harm will occur, and how imminent the risk of harm is. In the COVID-19 context, this requires employers to consider whether any COVID-19 mitigation efforts it is taking reduces the risk of harm related to the vulnerable employee at issue and others in the workplace.
Finally, an employer must determine if there are any reasonable accommodations that would render the risk no longer a "direct threat" under the above analysis. Would the addition of a plastic screen at the employee's workstation lower the risk level below that of a "direct threat," or are there alternate duties or a different work area? Those questions lead back to the interactive process common to all disability questions under the ADA.
Employers must remember that the best of motives, such as protecting an at-risk employee or their coworkers, does not justify an ADA violation, and they must carefully consider how to handle each susceptible employee returning to work on an individualized basis.
If you have questions, or would like additional information, please contact Bob Small, Chair of Reger Rizzo & Darnall’s Employment Practices Group, at 215.495.6541, or via email at email@example.com. We are working with clients to field inquiries and provide advice and guidance in a wide range of areas and industries during the COVID-19 outbreak. Please be sure to check back regularly for updated information. If you have an immediate need, please contact your attorney directly, or email us at firstname.lastname@example.org, and one of our dedicated attorneys will get back to you shortly.