Reopening Challenges: New EEOC Guidance Addresses Reasonable Accommodations for Higher-Risk Employees as They Return to Work

The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may need.

In a recent update on COVID-19-related guidance, the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with, among other things, enforcing the Americans with Disabilities Act (ADA), addressed protections afforded to employees who are deemed to be at higher risk from COVID-19. The guidance also clarified when the employer may (or may not) exclude such employees from the workplace, and most notably, provided examples of accommodations that could mitigate COVID-19 related risks while still bringing these higher-risk employees back into the workplace.  Below, we summarize the key components of the new guidance and address what it could mean for businesses.

Who is a Higher-Risk Employee?

According to the CDC, an employee falling into one of the following groups is deemed at “higher risk” for severe illness from COVID-19. Under the new EEOC guidance, these employees are entitled to request reasonable accommodations related to their underlying medical condition:

  • Individuals 65 years and older;
  • Individuals who live in a nursing home or long-term care facility; and
  • Individuals of all ages with underlying medical conditions, particularly if not well-controlled, including:
    • chronic lung disease or moderate to severe asthma;
    • serious heart conditions;
    • immunocompromised;
    • severe obesity (body mass index [BMI] of 40 or higher);
    • diabetes;
    • chronic kidney disease undergoing dialysis; and
    • liver disease.

What Does an Employee Need to do in Order to Request A Reasonable Accommodation?

The employee, or a third party, such as his/her doctor may request an accommodation, in conversation or in writing, for an employee’s underlying condition (any of those listed above). Such a request does not need to use the term “reasonable accommodation” or reference the ADA. However, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

As in any non-COVID-19 related scenarios, employers receiving such requests should engage these employees in the interactive process, including asking questions or seeking medical documentation to assess whether the employee has a disability under the ADA and if a reasonable accommodation could be made, absent undue hardship.

Can an Employer Bar Higher-Risk Employees from Returning to the Workplace?

If an employer knows that an employee is at higher risk for severe illness due to COVID-19 but the employee has not requested an accommodation, even if the company is worried that such employee’s health may be compromised upon returning to the workplace, generally the ADA does not allow the employer to exclude such an employee – or take any other adverse action.

The only rare exception is if the employee’s condition poses a “direct threat” to his/her health that cannot be eliminated or reduced by reasonable accommodation. Employers should be very cautious in using this exception, as it requires a thorough threat analysis, including: an individualized assessment based on relevant factors such as the severity of the potential harm to the employee; evaluating the chances that such harm will occur; gauging the likelihood that a person will be exposed to COVID-19 in the workplace; and, determining whether the threat can be reduced or eliminated through a reasonable accommodation.

Examples of Accommodations

The EEOC also provided some examples of accommodations (assuming they do not present an undue hardship) for these types of individuals, including:

  • additional or enhanced protective gear beyond what the employer may generally provide to employees returning to its workplace;
  • additional or enhanced protective measures (e.g., barriers that physically separate or increase space between an employee with a disability and coworkers or customers);
  • temporary modification of work schedules to decrease interpersonal contact; and,
  • physically relocating the employee to another area of the workplace to allow for greater social distancing.

What It Could Mean for Businesses

The unique factor about this new guidance  is that the EEOC has specifically indicated that people who are considered “higher risk” — for example, even just based on their age— may be considered to have disabilities under the ADA and would potentially have to be accommodated. As businesses inch towards reopening, they almost certainly will encounter higher-risk employees who are reluctant to return to work or request some kind of accommodation. The EEOC’s guidance makes plain that employers should be prepared to address any potential accommodation requests for higher-risk employees and be creative and agile in developing and implementing alternative work arrangements that would not jeopardize the businesses’ operations. Employers are also reminded that many states and local jurisdictions have their own disability accommodation laws, and companies should ensure compliance with those rules as well.

Preparation is key to ensure your business is fully prepared and in compliance with how to address accommodations for higher-risk employees.