Over the past several months, EEOC, DOL, OSHA and other federal agencies have provided answers to dozens, if not hundreds, of questions regarding how employers should handle their responsibilities to employees during this unprecedented time. The EEOC has reminded employers of their obligations, even during the COVID-19 pandemic, to comply with federal anti-discrimination laws including the Americans With Disabilities Act.
Recently, the EEOC provided guidance that appeared to allow employers to treat employees differently because they had a medical condition that could put them at a higher risk for contracting COVID-19. This was not the EEOC’s intent and it quickly reissued guidance clarifying an employer’s obligations to workers with underlying medical conditions. In short, an employer must follow the ADA.
The EEOC explained that if the employee did not request a reasonable accommodation, “the ADA does not mandate that the employer take action.” However, importantly, the EEOC stated “the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability” that may put them at higher risk if they contract COVID-19.
The ADA only allows an employee to be excluded from work if their health condition poses a “direct threat” that cannot be reduced or eliminated by a reasonable accommodation. This is a high burden for employers to satisfy.
An employer who tries to exclude an employee from the workplace due to a “direct threat” must show that they employee poses a “significant risk of substantial harm” to their health. That determination, however, requires an employer to evaluate the facts of each employee’s situation and not make any blanket assumptions. The EEOC, in its guidance, lays out a number of factors that the employer must consider when making this assessment including:
- the duration of the risk,
- the nature and severity of the harm that might be suffered,
- the likelihood that harm will occur, and
- “the imminence of the potential harm.”
Employers should also consider the severity of the pandemic where the employer is, the employee’s own health, the job duties of the employee and potential exposure in the workplace. In short, the employer must engage in a real, comprehensive and careful review of many factors before declaring the employee poses a “direct threat.”
But, even after this careful review, if an employer determines that the employee does pose a direct threat, their work is not over. The employer must then determine if there is a way to provide a reasonable accommodation to the employee. If there is, then the employer cannot exclude the employee or take any other adverse action. As always, in determining whether a reasonable accommodation is possible, the employer must engage in the interactive process with the employee. As an employer, you must talk to the employee to determine what, if any, accommodation could be made. The EEOC specifically notes that “an employer must consider accommodations such as telework, leave or reassignment.”
Plainly, this determination is driven by the facts of each situation and, if not handled properly, could expose the employer to a claim of discrimination. The bottom line is that you should not, and cannot, simply exclude an employee from the workplace because you think they might be more susceptible to COVID-19. If you encounter this situation, we would encourage you to contact experienced employment counsel.