08 May 2020

Bringing the US workforce back: Guidance from the EEOC regarding high-risk employees

As states who have been under stay-at-home orders begin the process of lifting those restrictions, employers who have sent their workforces home to telework or who have furloughed their employees, are now left with the task of contemplating how best to bring employees back to their physical office spaces. In addition to considerations regarding maintaining social-distancing in the workplace, hygiene practices, and policies regarding illness and even temperature checks, a big question for many employers remains how to handle employees who may be deemed “high-risk.” According to the Center for Disease Control, high-risk individuals include those with chronic lung conditions, serious heart conditions, diabetes, liver issues, or those who are immunocompromised. Employers that are reviving their business will be trying to balance general employee concerns, as well as navigating laws which protect employees with certain health conditions, including the Americans with Disabilities Act and the Rehabilitation Act and similar state and local laws. Notably, the Equal Employment Opportunity Commission, the federal administrative agency responsible for overseeing and enforcing various federal anti-discrimination, has made clear that while the EEO laws continue to apply during the pandemic, they should not interfere with, or prevent employers from following guidelines made by the CDC or other public health authorities regarding COVID-19.

On May 5, 2020, issued guidance which indicated employers could potentially prohibit employees with an underlying medical condition from working during the COVID-19 pandemic when doing so would create a “direct threat” to that employee’s health.

This guidance, however, was quickly retracted by the EEOC when it believed its guidance was being misinterpreted as allowing employers to act against an employee simply because they have one of the conditions listed by the CDC.

Revised guidance from the EEOC was issued on Thursday, May 7, 2020, this time making it clear that under the ADA an employer cannot per se ban an employee from returning to their workplace due to an underlying medical condition, but that the employer and employee should engage in discussions and a direct-threat analysis while exploring ways in which to accommodate the employee and mitigate the “direct threat” to his/her health. Accordingly, banning a high-risk employee from coming to work is not permitted unless the disability poses a “‘direct threat’ to [his/her] health that cannot be eliminated or reduced by reasonable accommodation.” An employer is not, however, required to take any action unless it is requested by the employee.

It should be noted that the “direct threat” standard is a particularly high one, and simply having a condition listed on the CDC is not going to be sufficient. According to the EEOC, an individualized assessment of the employee’s condition rather than the condition, in general, should be explored. Further, any decision should consider potential harms, likelihood of being exposed at work, and mitigation efforts. Employers will be required to consider telework, and in some instances, reassignment as a potential reasonable accommodation.

As with pre-pandemic times, even for those who do present as a direct threat, employers will still need to engage with them to determine whether employees can perform their work with a reasonable accommodation and providing there is no undue burden for the employer.

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