As businesses all over the country prepare to open up and welcome employees back to work – even while the pandemic rages on – there remains a high degree of uncertainty concerning how to keep employees safe, especially those who may be at higher risk because of age or a medical condition. Adding to employer angst over this issue, the EEOC, the agency charged with interpreting the discrimination laws, found it necessary last week to issue guidelines and then clarify its own statements within just two days. On Tuesday, May 5, 2020, the EEOC issued new “Return to Work” guidance, but then pulled it down within 24 hours. On May 7, 2020, it issued updated guidance, which focused on how employers should handle return to work issues, but with special emphasis on how they should treat “high risk” employees.
One major takeaway from the guidance is that employers cannot exclude high risk employees from the workplace just because there is a concern about COVID-19 exposure. Andrew Maunz, EEOC Legal Counsel stated, “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.”
The EEOC states employers must conduct an “individualized assessment” of whether a worker’s disability poses a direct threat to their health that is “based on a reasonable medical judgment about this employee’s disability — not the disability in general — using the most current medical knowledge and/or on the best available objective evidence.”
Further, even if employers conclude that the employee’s condition may pose a direct threat to that person’s health, the EEOC has made it clear that employers must consider all possible accommodations before the person is ‘excluded’ from work. Such accommodations must include consideration of leave, telework, or reassignment to a new job that is safer.
To summarize: “An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”
To help alleviate employer angst, we applied the May 5th and May 7th EEOC guidance to common scenarios employers will likely face as they reopen their workplaces:
Is COVID-19 a “disability” under the ADA?
According to the EEOC, not necessarily. An individual could have an underlying health condition that combines with COVID-19 to create a disability for which reasonable accommodation must be considered. COVID-19 may, however, constitute a disability under state or local laws.
Can an employer ask an employee if he or she is experiencing COVID-19 symptoms (e.g., cough, shortness of breath, fever)?
Yes, an employer may ask employees before they come back and while they are working, if they are experiencing COVID-19 symptoms. If an employee is noticeably coughing, or appears ill at work, a manager can ask the employee if the employee feels ill, and ask him or her to go home.
Can an employer prohibit an employee who is experiencing COVID-19 symptoms from returning to work?
Yes, an employer can, and should, prohibit an employee who is experiencing COVID-19 symptoms from returning to work. The employer can require a doctor’s note or a negative COVID test, before allowing that person to return to work.
Can employers ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?
No. The EEOC reminds us that the Genetic Information Nondiscrimination Act (GINA), prohibits employers from asking medical questions about family members. Instead, ask whether an employee has had contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with the disease.
Can an employer prohibit an employee from returning to work if he, or she, refuses a temperature screening?
Yes, the EEOC had previously said that temperature screening was lawful. It is clear that an employer can prohibit an employee from returning to work if he, or she, refuses a temperature screening.
Can an employer prohibit a “high risk” employee from coming to work, because they may contract COVID-19?
No, you cannot exclude all high risk employees from the workplace. However, there is another way to approach this—if the employee has been, or can work remotely, tell the employee in the first instance that you want them to telework as a reasonable accommodation. You are not “excluding” the employee from the workplace, you are just asking them to work in another way.
By doing so, the employer can protect itself from a lawsuit by the high-risk employee, for either contracting COVID-19 at work, or from a claim of adverse action based on their condition.
The EEOC clarified in the most recent guidance (May 7), that an employer may not exclude an employee from the workplace – or take other adverse action – solely because the employee is at a “higher risk for severe illness” if he or she gets COVID-19. The employer must first consider whether the employee’s condition poses a “direct threat” (i.e., a “significant risk of substantial harm”) to his or her health, that cannot be eliminated or reduced by reasonable accommodation.
In sum, as the EEOC has clarified: “Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation.”
Do you have to accommodate an employee who is anxious about coming back, but does not have a disability?
No. The EEOC has made clear that employers are not required to accommodate employees who are not disabled.
The same rule applies if a non-disabled employee is asking to telework or to be excused from certain duties because they have a family member at home who is at high risk—an employer is not required to accommodate the employee. This topic was discussed in a recent Law 360 article.
Must an employer consider telework as a reasonable accommodation, if an employee has a disability?
Yes, with the caveat that the employer should consider all possible accommodations. Telework is one possible reasonable accommodation. Other possible accommodations include:
- providing personal protective equipment (PPE) to employees;
- erecting barriers;
- temporary modification of work schedules or staggered shifts.
The EEOC has reiterated that, before taking any action against an employee because they are at risk of COVID-19, you must explore a range of possible accommodations.
What if you cannot grant a particular accommodation?
The same rules apply, an employer is not required to grant an accommodation that would pose an undue hardship.
Also, as before COVID-19, it is incumbent upon the employee to inform his or her employer of the need for an accommodation whether orally, or in writing. The employer may then ask questions, and seek documentation, to determine whether the employee has a disability within the meaning of the ADA, and if there is a reasonable accommodation available. Identifying an effective accommodation requires an individualized inquiry, including identifying the employee’s essential job duties, limitations of the employee’s disability on his or her ability to perform the essential job duties, the design of the workspace, etc.
Can these accommodations be temporary?
Yes. The EEOC has said before, and reiterates now, that these COVID-19 accommodations can be designated to be temporary, and can be eased or changed as the conditions of the pandemic change.
What information can an employer disclose about an employee who has symptoms of COVID-19 or a positive diagnosis?
The EEOC has always maintained that the ADA requires employers keep medical information confidential, and COVID-19 does not change that rule.
Thus, if anyone learns about an employee’s positive diagnosis, or COVID-19 symptoms, they may NOT disclose the name of the employee, except to those who must know.
Should you tell others and trace contacts?
Yes, once there is a diagnosis, a trusted person must obtain from the infected employee a list of where they have been, and who they had contact with. Those people should be told of a potential exposure, but NOT the name of the employee who is positive.
For most businesses returning to the workplace, work following the COVID-19 pandemic will be a journey, not a sprint. Many issues will arise gradually, as more and more employees reenter the workplace.
Smart executives will follow the latest guidance, proceed carefully, document decisions, and call their favorite Kelley Drye lawyer for advice!