EEOC Issues More Guidance on Accommodating Employees at High Risk for Illness During the Pandemic

May 11, 2020

The Equal Employment Opportunity Commission (EEOC) continues to update its guidance on dealing with employment issues related to coronavirus. Last week, it added additional information to its Questions and Answers in the Return to Work section. As a way to help track the ever-changing guidance, the EEOC notes the date when the particular information was added. The 3 latest Q&A’s specifically address the issues related to accommodations for employees with medical conditions that put them at higher risk for contracting coronavirus.

Briefly, the new guidance clarifies what an employee with an underlying medical condition at higher risk for COVID-19 must to do request an accommodation. The guidance provides that an employee must take affirmative steps to let the employer know that he or she needs an accommodation because of an underlying medical condition. The request can be done in writing, or in an oral conversation, by the employee him/herself or a third-party representative, like the employee’s doctor. As with any other request for accommodation, there are no magic words an employee seeking a COVID-related accommodation needs to use, and an employee need NOT reference the Americans with Disabilities Act or use the phrase “reasonable accommodation” to trigger the employer’s duty to assess the request. The guidance also reiterates that in the context of a request for accommodation, an employer may ask questions or seek medical documentation to determine whether the employee has a disability and/or if there exists a reasonable accommodation that does not impose an undue hardship.

The guidance also incorporates by reference CDC’s list of medical conditions that may make a person higher risk in the context of COVID-19. But it also specifies that an employer CANNOT exclude an employee from the workplace based solely on its own concerns that an employee may be high risk for severe illness simply because he or she has a medical condition on the list. In order to exclude the employee from wok, the employee’s disability must pose a “direct threat” to the employee’s health. The EEOC notes that this is a “high standard” to meet, it cannot be based solely on the condition being on the CDC’s list, and instead requires an individualized assessment of the employee’s disability, not the disability in general, as well as the risk of exposure in the workplace (among other factors). Importantly, the guidance also reiterates that even if an employee’s disability poses a “direct threat” to his/her own health, the employer still cannot exclude the employee from the workplace if there is a way to provide a reasonable accommodation to perform his/her essential factions.

The new guidance provides a list of examples of accommodations, absent due hardship, that may reduce or eliminate the direct threat to an employee’s health. Those include, according to the EEOC:

  • Additional or enhanced protective measures, for example, physical barriers that provides separation between an employee with a disability and coworkers/the public;
  • Elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position);
  • Temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting); and/or
  • Moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

While list of examples is helpful, the guidance also clarifies that the list is not exhaustive and as with accommodating any disability, employers must engage in the interactive process to assess the availability of a reasonable accommodation that allows employees at high risk of severe illness during the pandemic to return to work.

The full EEOC guidance provides additional more information from the EEOC on these and other issues related to COVID-19.

As states are expected to increasingly permit businesses to reopen, employers are well advised to monitor additions to this EEOC guidance and seek the advice of legal counsel, as necessary, to ensure that their return to work procedures and responses to requests for job accommodations, are lawful under the laws enforced by the EEOC, as well as other relevant statutes.