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Recent U.S. Equal Employment Opportunity Commission guidance on what employers should do to accommodate workers who may be vulnerable to COVID-19 raises more questions than it answers for employers already struggling to craft reopening plans that mitigate legal risks. The EEOC’s new guidance was posted on May 7 as part of the “Return To Work” portion of a technical assistance document the agency has periodically updated in recent weeks that addresses pandemic-related issues affecting the workplace. The latest post revised a guidance that the anti-discrimination watchdog had released two days earlier but pulled down because it was “misinterpreted” upon becoming public.

The revised guidance clarifies that the Americans with Disabilities Act does not allow employees to be barred from going back to work solely because they are over the age of 65 or have medical conditions like serious heart problems, diabetes, asthma and severe obesity that have been identified by the Centers for Disease Control and Prevention as placing people at greater risk of becoming severely ill if they become infected with COVID-19. But the guidance may leave employers less sure-footed as they start bringing workers back to work, even if their intentions are to protect them.

The big picture is that employers should be very hesitant to take any type of unilateral action [against] specific employees or at-risk employees out of concern of COVID-19, even if the employer is aware of the employee’s medical condition that might place them in the high-risk category. Employers should especially be hesitant to take any actions that might be considered exclusionary or adverse. While the guidance wasn’t a groundbreaking departure from a legal standpoint regarding how employers approach reasonable accommodations under the ADA, practically it is going to have a much broader reach than under normal circumstances. That’s partially because people who aren’t normally considered “disabled” or wouldn’t seek an accommodation — like someone with a compromised immune system — may be “treated differently” because they’re at a higher risk of severe illness. The risk of the employer running afoul of the guidelines or the ADA increases as more and more conversations about potential accommodations take place.

The framework laid out in the EEOC’s guidance says that businesses have to conduct a “direct threat analysis” to determine if an at-risk worker’s own health is imperiled by having them return, as well as “an individualized assessment” to figure out if there is a reasonable accommodation that can mitigate the risk. The individualized assessment must be grounded in a “reasonable medical judgment” and “objective evidence” about the particular employee’s own disability, and employers should weigh a variety of factors when they conduct the assessment, such as the severity of the potential harm to the worker and the likelihood a person will be exposed to COVID-19 at work, the EEOC said. Even if a business concludes that a worker’s disability poses a direct threat to herself, the individual still can’t be barred from work or have any other adverse action taken against her “unless there is no way to provide a reasonable accommodation” that doesn’t pose an undue hardship on the employer, according to the agency’s guidance. Some potential accommodations listed by the EEOC include telework, leave or reassigning a worker to a different job that allows them to work in a part of a shop or office that is safer for them.

The EEOC guidance appears intent on ensuring businesses don’t look back at the employee population and evaluate different employees based on pre-existing conditions they know they have. For instance, the guidance makes clear that saying, “I know Matt has asthma, I know Steve has diabetes, therefore given the guidelines that are in place, we may consider bringing everybody else back to the office and not them,” is not permissible. There needs to be an individualized assessment based on the particular employee’s condition and how it relates to the workplace. To be clear, the EEOC’s guidance appears to prevent employers from requiring high-risk employees to continue to work from home. Of course, no issue will exist if the employee agrees to continue working remotely.

Although the guidance does encourage the continuation of telework, it appears to take away some of the discretion that an employer generally gets to use in making decisions about the workplace, and also runs counter to recommendations from many state governments that employers should keep high-risk employees away from the workplace unless it can’t be avoided. In other words, it should not be at your initiative as the employer to tell particular employees ‘you keep telecommuting’ if the reason that you’re telling them to continue teleworking is because that person has a particular medical issue. The better way to handle it is perhaps to ask which employees want to continue to telecommute, and then make a well-reasoned business decision as to who can continue to telework and who can’t.

While the EEOC’s guidance requires employers to explore reasonable accommodations for at-risk workers that don’t present undue hardships on the business, the agency recently lowered the bar for what constitutes such a hardship during the pandemic. In mid-April the agency said some accommodations that would not have posed an undue hardship before the pandemic may pose one now. The EEOC basically said that because of the reality of the world we’re in today, the costs that are involved and the number of people that are impacted, there may be a lower threshold before a reasonable accommodation is considered an undue hardship.

Regardless of whether workers are in the pool of high-risk individuals as outlined by the CDC, a primary focus for employers should be making sure to take a consistent approach and take care that you’re not stigmatizing or stereotyping people in a protected group when the issue of accommodations arises. Employers should exercise caution about the kind of accommodation they actually do provide. For instance, putting up plexiglass for just one person and not the entire workforce could cause someone with an underlying medical condition to be singled out. If you’re not going to put up plexiglass for everybody but you only do it for one or two people, it stands out like a huge red flag, and it’s a big mark on that employee that they have some sort of medical issue. It may even breach confidentiality laws, and even if it doesn’t, it’s certainly going to make that employee feel awfully strange and uncomfortable.

Navigating the reopening of business while also trying to protect employees and especially those considered at-risk will be a tricky and fact intensive process. Schwartz Rollins is ready to help you when the need arises.

View the EEOC Pandemic Preparedness in the Workplace and the Americans with Disabilities Act:

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