In a series of guidance issued since May 5, 2020 (some of which was withdrawn, revised, and reissued), the U.S. Equal Employment Opportunity Commission (EEOC) addressed protections under the Americans with Disabilities Act (ADA) for workers who are at higher risk of severe illness from COVID-19, clarified when such individuals may be excluded from the workplace, and shared examples of accommodations that could reduce COVID-19 related risks to these employees.  

What Does the Guidance Say?

Higher-Risk Individuals May Request Accommodations

In its guidance, the EEOC confirms that employees may request reasonable accommodations if the U.S. Centers for Disease Control and Prevention (CDC) deems them “higher risk” for severe illness from COVID-19. These higher-risk groups include:

• People age 65 years and older;
• People who live in a nursing home or long-term care facility; and
• People of all ages with underlying medical conditions, particularly if not well controlled, 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 (body mass index [BMI] of 40 or higher);
  • People with diabetes;
  • People with chronic kidney disease undergoing dialysis; and
  • People with liver disease.

Employees in these categories may request an accommodation related to their underlying medical condition.  Employers receiving such requests should engage these employees in the interactive process, including asking questions or seeking medical documentation to determine whether the individual has a disability and whether there is a reasonable accommodation, barring an undue hardship (i.e., significant difficulty or expense), that would reduce their risk of contracting COVID-19.

Employers May Bar Higher-Risk Employees from the Workplace if They Pose a Direct Threat Despite Accommodation

The EEOC withdrew its original guidance on this point and reissued it on May 7, 2020, because it allegedly had been misinterpreted to permit employers to bar employees from working during the COVID-19 pandemic if they reasonably believed employees’ underlying medical conditions (as noted above) would pose a “direct threat” to the workers’ health.  The EEOC has now clarified that these “higher risk” individuals can be excluded from work only if their disability poses a “direct threat” to their health that cannot be eliminated or reduced by reasonable accommodation.

As explained in the guidance, the direct threat defense “requires an employer to show that the individual has a disability that poses a ‘significant risk of substantial harm’ to [their] own health under 29 C.F.R. section 1630.2(r).”  The direct threat assessment must be individualized, and the employer should consider the severity of the pandemic in the geographic area where the employee works, the employee’s health condition, the particular job duties and likelihood of exposure at work, and any protective measures the employer is taking to slow the spread of COVID-19.

Even if an employer determines that an employee’s condition poses a direct threat, the employer nonetheless cannot exclude the employee from work (or take other adverse action) unless there is no way to provide the employee a reasonable accommodation that would eliminate or reduce the risk so the employee could safely perform their essential job duties at work.  

Employers and Employees Are Encouraged to be “Creative and Flexible” with Accommodations 

Finally, the EEOC provided several examples of accommodations that could eliminate or sufficiently reduce the direct threat that exists for these higher-risk employees at work.  Such accommodations could include:

• providing protective gear that would not normally be required for the employee’s job;
• taking protective measures such as creating additional space or installing barriers between an employee with a disability and others at the workplace;
• removing discrete, non-essential functions of employees’ jobs;
• modifying work schedules to decrease contact with coworkers and/or the public (when on duty or commuting); or
• rearranging workspaces or “moving the location where one performs work . . . if that provides more social distancing.”  

The EEOC encourages employees and employers to think beyond these examples and be “creative and flexible” in evaluating and developing reasonable accommodations during the pandemic.

So What Does this Guidance Mean for Employers?

At least for the duration of the COVID-19 pandemic, the EEOC’s guidance apparently broadens the ADA’s protections to cover individuals with pre-existing medical conditions, even if they currently do not have a “disability” as that term is used under the act. The guidance requires employers to engage these employees in the interactive process and provide reasonable accommodations absent undue hardship.  Employers should be prepared for the potentially increased need to spend time, resources and finances to work with a greater number of employees to determine and implement effective work adjustments so they will not pose a direct threat of harm to themselves due to their underlying medical conditions. Depending on the circumstances, employers may find that fewer employees are able to return to work, or remain at full capacity or in their original roles, for the foreseeable future.

For employees who have been able to perform the essential functions of their position while teleworking during the pandemic, employers may wish to continue allowing higher-risk individuals to continue to telework for an additional period beyond a worksite reopening.

Due to the complexity and evolving nature of this issue, businesses should consult with competent employment law counsel regarding compliance with legal requirements for engaging employees in the interactive process, granting accommodations, or excluding higher-risk employees during the COVID-19 pandemic.