Businesses are beginning to reopen across the country, and as employees come back to work, employers are considering to what extent they can protect vulnerable employees who continue showing up for work in spite of the risk posed by COVID-19. The U.S. Equal Employment Opportunity Commission (EEOC) recently released guidance to address this question.
For background, as the Centers for Disease Control (CDC) learns more about the COVID-19 virus, it identifies certain conditions that might make a person more susceptible to severe illness. Specifically, the CDC has identified the following groups as high-risk for severe illness:
- People 65 years and older
- People who live in a nursing home or long-term care facility.
Additionally, the CDC has stated that people of all ages with certain underlying medical conditions, particularly if not well-controlled, are at a higher risk for severe illness including:
- People with chronic lung disease or moderate to severe asthma
- People who have serious heart conditions
- People who are immunocompromised
- People with severe obesity
- People with diabetes
- People with chronic kidney disease undergoing dialysis
- People with liver disease.
So to what extent, if any, can an employer proactively protect an employee who the employer knows is a member of a vulnerable population when the employee does not personally ask for an accommodation? The EEOC provides that when an employee has not requested a reasonable accommodation but is known to be a member of a vulnerable population, the employer is under no obligation to provide an accommodation. However, the employer may take certain steps to mitigate the risk of COVID-19 posed to the employee in the workplace.
Even if the employer is concerned about a particular employee’s health, the Americans with Disabilities Act (ADA) does not allow the employer to exclude or otherwise take any adverse action solely because the employee has a medical condition that the CDC has identified as increasing the employee’s vulnerability to COVID-19. The ADA provides that such action can only be taken if the employee’s disability poses a “direct threat” (i.e. a “significant risk of substantial harm”) to the health of the employee or others in the workplace that cannot be eliminated or reduced by reasonable accommodation.
A direct threat analysis should be a highly fact-specific, individualized assessment. An employer cannot rely solely on a condition’s inclusion on the CDC’s vulnerable conditions list to determine that an employee poses a direct threat to his or her personal health. Employers should consider factors such as:
- 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 harm.
The EEOC notes that analysis of these factors should include considerations based on the severity of the pandemic in a particular area and the employee’s own health (e.g., is the employee’s condition controlled) and the employee’s particular job duties. The analysis should also include the likelihood of the employee being exposed to the virus at work, as well as general measures the employer may be taking to protect all workers, such as social distancing.
If an employer conducts a direct threat analysis and determines that an employee poses a direct threat to his or her personal health, the employer still may not exclude the employee from the workplace or take any other adverse action unless there is no way to reduce or eliminate the risk by providing a reasonable accommodation in the workplace.
The EEOC provides a number or examples of possible accommodations to reduce the risk posed to a vulnerable employee during the COVID-19 pandemic. These accommodations include:
- Protective gowns, masks, gloves, or other gear;
- erecting a barrier that provides separation between an employee with a disability and coworkers/the public;
- increasing the space between an employee with a disability and others;
- elimination or substitution of marginal functions
- temporary modification of work schedules to decrease contact with coworkers and/or the public when on duty or commuting;
- moving the location of where the employee performs work (for example, the end of a production line instead of the middle of the line.
Instinctually, many employers are looking for ways to protect their workforce upon returning to work. However, employers should be wary of proactively asking employees whom they have identified as vulnerable to stay at home to try to reduce the risk of COVID-19 to the workforce. The ADA penalizes employers from discriminating against an employee on the basis that it regards the employee as having a disability, whether or not the employee is in fact is a person with a disability as defined under the Act. There are likely ways that the employer can accommodate vulnerable employees short of sending them home.
Further, although the DOL’s ADA guidance does not directly implicate issues of age discrimination, employers should be similarly restrained before taking steps to protect an employee just because of age. As many are aware, the CDC has identified individuals 65 and older as being at higher risk for severe illness. Even so, the federal Age Discrimination in Employment Act (ADEA) prohibits singling out or treating older employees less favorably because of their age. The better approach is to let older employees come forward with any individual concerns they may have and address those on a case-by-case basis, rather than imposing across-the-board working conditions or quarantine requirements only because of age.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.