The EEOC has maintained an FAQ page that highlights many scenarios and questions that employers are facing, or will be facing. The Agency has been updating this page periodically. The latest updates involve the following situation:
The CDC identified medical conditions that might place individuals at a higher risk for severe illness should they contract COVID-19. What can an employer do when they know that the employee has one of these conditions? What can an employer do when they are genuinely concerned that the health of the employee will be jeopardized upon returning to the workplace?
This article takes a deep dive into this issue.
Let’s break this down….
Number 1: CDC
- Individuals who are 65 years or older;
- Live in a nursing home or long-term care facility;
- People of all ages who have underlying medical conditions particularly if they are not well controlled. This includes individuals with:
- People who are immunocompromised. Many conditions and treatment can cause individuals to be immunocompromised including:
- cancer treatment
- bone marrow transplant
- organ transplant
- immune deficiencies
- poorly controlled HIV/AIDS
- prolonged use of corticosteroids and other immune weakening medications.
Number 2: Americans with Disabilities Act (ADA)
- Businesses With Less Than 15 Employees Can Still Be On The Hook
The ADA applies to businesses with 15 or more employees. It is important to note that if your business has less than 15 employees, then almost identical state laws can apply to your company. For instance, the Pennsylvania Human Relations Act (PHRA) applies to businesses with more than four employees.
- If The Employee Does Not Request an Accommodation, The Employer Does Not Need To Provide an Accommodation…Generally
If an employee does not make a request for a reasonable accommodation based on their underlying health condition, the employer does not need to take any action. (REMEMBER: Employees do not have to include in writing that they need a request, nor does it require the “magic words” of “reasonable accommodation.” The request just needs to be clear that the employee needs assistance.)
- As employers resume conducting in-person business, it would be good practice to document the absence of a request for a reasonable accommodation. This could be as simple as a form in each employee’s file that indicates whether the employee made a request for an accommodation on the first day back.
The ADA states that an employer discriminates against a qualified individual on the basis of disability, if that employer does not make reasonable accommodations. Now, if an employee has not made a request for an accommodation, then generally the employer is not obligated to provide an accommodation. See EEOC Enforcement Guidance, Question #40.
However, employers must be aware of the three scenarios where the employer may be obligated to provide an accommodation without a request where the employer: (1) knows the employee has a disability, (2) knows or should know that the employee is experiencing work problems because of the disability, or (3) knows that the disability prevents the employee from requesting the accommodation. Usually, these situations occur when the disability is open and obvious or include a longer hospital stay that required missed work. Employers should be aware when their duty is triggered. Consulting with counsel in these situations is recommended. This article focuses on the individuals with the CDC recognized conditions.
OK…so employers might be thinking, “I know my employee has diabetes, I am worried about them getting super sick if they come back to my office, I will not allow them to work.” Not so fast…
- Direct Threat to the Work Place
Employers cannot make any adverse employment decisions solely because the employee has a disability that the CDC identified as putting the individual at higher risk. So, if you have an employee who is diabetic,
The FAQ explains that an employer cannot exclude an employee or make an adverse employment decision based on the employees health condition, unless the disability poses a direct threat to that employee’s health and cannot be remedied with a reasonable accommodation.
So what is a direct threat?
According to the Federal Regulations, an employee can be a direct threat to themselves. The ADA defines a direct threat as, “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The Federal Regulations expand this and states that the substantial risk can apply not only to others in the workplace, but the individual themself. Section 1630.2(r) explains that a direct threat is where there is a “significant risk of a substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.”
Before asking your employee to stay home, employers must actually determine whether the employee is a direct-threat to their own health. The Regulations direct employers to assess the employee’s ability to safely perform the essential functions of the job. The assessment must be based on reasonable medical judgment and rely on the most current medical knowledge and/or the best available objective evidence. The employer must weigh the following factors when deciding if the employee is a direct threat to themselves or others:
- Duration of the risk;
- nature and severity of the harm;
- likelihood that potential harm will occur; and
- imminence of potential harm.
The FAQ sheet directs employers to assess the severity of the pandemic in the area and the employee’s own health. It is notable that the EEOC states that the assessment would include the likelihood that an individual would be exposed to COVID-19 at work, and the safety measures that the employer is taking to protect all workers.
If the employer conducts the assessment and determines that the employee is a direct threat to their own health, then the employer may take an adverse action only if there is no way to provide a reasonable accommodation. The Act allows employers to implement qualification standards that tend to screen out, or deny a job or benefit to an employee with a disability, so long as the standard, “has been shown to be job-related and consistent with the business necessity, and such performance cannot be accomplished by reasonable accommodation.”
- Interactive Process
If the employer determines that the employee is a direct threat to themselves, then the employer must evaluate whether the business can reasonably accommodate the individual. If there are no accommodations that permit the employee to return to the actual workplace, then accommodations such as remote working, leave or reassignment are options. (NOTE: This blog does not cover the requirements and specifics of the interactive process and reasonable accommodations. Employers should consult with counsel with any questions regarding the process.)
WHAT DOES THIS MEAN:
When an employer knows that their employee has a medical condition that the CDC listed as one that places individuals at a higher risk of a severe case of COVID-19…
- If the employee does not ask for an accommodation, the employer does not have to provide accommodation.
- If the employee does not ask for an accommodation, the employer can take action by assessing whether the employee is a Direct Threat.
- If the employee is deemed a Direct Threat, then the employer must attempt to provide a reasonable accommodation for the employee, which may involve engaging in the interactive process.
- The employer can bar an employee from the workplace, only if the employer cannot provide a reasonable accommodation.
ABOUT SUSIE CIRILLI
Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.
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