Employers Cannot Exclude At-Risk Employees, Says EEOC in New Return-to-Work Guidance 

Written by Jeremy Mittman and Carly Epstein

The EEOC recently answered the question whether employers can bar from the workplace employees who, according to the CDC, are at a “higher risk for severe illness” if they get COVID-19.

In the words of the EEOC in its press release: “It is important that employers understand that the ADA does not allow them to act against employees solely because the employee has a CDC-listed underlying medical condition.”

An employer cannot exclude — or take any other adverse action against — an employee solely because he/she falls within the CDC identified high risk category.  Instead, the employer must determine whether the “employee’s disability poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation.”

“Direct threat” under the ADA means that there is “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.”  29 C.F.R. § 1630.2(r).  The “direct threat” determination must be based on (1) an “individualized assessment of the employees present ability to safely perform the essential functions of the job,” and (2) “a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”  The individual assessment must look at each employee’s situation uniquely, and not the disability in general.

Factors to consider when deciding if an individual would pose a direct threat include:

• 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.

The EEOC suggests that in applying these factors, employers consider:

• the severity of the pandemic in a particular area,
• the employee’s own health (i.e., is the employee’s disability well-controlled),
• the employee’s job duties,
• the likelihood the employee will be exposed to the virus at the worksite, and
• measures the employer has in place to protect all workers (i.e., social distancing, face masks, etc.).

If an employer concludes that a “direct threat” exists, it cannot automatically “exclude the employee from the workplace — or take any other adverse action —unless there is no way to provide a reasonable accommodation (absent undue hardship).”  Instead, the employer must engage in the interactive process to eliminate or reduce the risk so that the employee can return to the workplace and perform his/her essential functions.  Workplace accommodations could include:

• Enhanced protective gowns and/or other protective gear (masks, gloves, etc.) that go beyond what the employer may generally provide to its employees in the workplace,
• Enhanced protective measures (i.e., erecting barriers, increasing the space between the high risk employee and other employees/the public),
• Elimination or substitution of some less critical or incidental job duties (i.e., non-essential duties), or
• Temporary modification of work schedules that will decrease contact with coworkers and/or the public when working or commuting, or moving the employee’s work station (i.e., end of the production line instead of the middle).

If no workplace accommodation can reduce or eliminate the direct threat, then the employer must consider accommodation such as work from home, leave, or reassignment.

The EEOC also reminded employers that “if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.”