Last week, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” Expanded additional questions and answers provide information about the accommodation of employees with underlying medical conditions, particularly now as certain employers and jurisdictions eye some form of return to work for parts of their workforces.
The guidance had already addressed workplace screening and exclusion of those at risk of transmitting illness because they had COVID-19 or symptoms. Newly issued information here addresses the how to handle situations where a potentially returning employee might have a CDC-identified underlying medical condition putting them at enhanced risk in the workplace. While, by and large, general ADA accommodation principles apply precluding automatic exclusion from the workplace, the guidance also outlines the circumstances under which the employer might invoke the “direct threat” defense.
An employer may not exclude an employee from the workplace solely because the employee has a disability, condition, or illness that may place her at higher risk if she contracts COVID-19. This response is only allowed if the employer can establish, as an affirmative defense, that the employee’s disability “poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation.” Per the new guidance:
The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment 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.
Perhaps the soundest advice, highlighted in the materials in bold, is the EEOC’s general reminder:
Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
The EEOC’s comprehensive information page on COVID-19 issues is located here.