As businesses begin to re-open in almost all fifty states, there is an increasing focus on what to do about “high-risk” employees. The focus of this post is on “high-risk” individuals who have an underlying illness or other risk factors (e.g., age) that put them at higher risk for severe illness from COVID-19. This post analyzes two common scenarios.
Scenario 1: How should an employer respond if an employee comes forward and expresses a fear of returning to work because he/she has an underlying medical condition or is part of an at-risk group? Employers should not deny such requests out of hand; rather, employers should first consider whether the ADA, the FMLA, or another federal or state leave law might apply.
The best practice under the ADA, according to the EEOC, is to treat the request as a request for an accommodation and engage in an interactive process with the employee to determine if a reasonable accommodation, absent undue hardship, is available. EEOC Technical Guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, G.3. Employers receiving such a request may ask for medical documentation to determine if the underlying condition is a disability (assuming the disability is not obvious or already known to the employer). Id. at D.5. Employers may also ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he/she requested or any other. Id. at D.6. Possible questions employers may ask include: (i) how the disability creates a limitation, (ii) how the requested accommodation will effectively address the limitation, (iii) whether another form of accommodation could effectively address the issue, and (iv) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position. Id.
For FMLA-eligible employees, employers should follow their usual FMLA notification, designation, and certification processes. While a general fear that an employee may contract COVID-19 is probably not enough to invoke the FMLA, an opinion from a healthcare provider that an employer has a serious health condition that prevents him/her from working in the workplace may be.
Finally, in addition to the new federal paid sick leave and family leave law (the Families First Coronavirus Response Act), a number of states have passed state leave laws that deal specifically with COVID-19 related and/or public health emergency situations. Such leave may include paid sick leave and paid disability leave. Other states, like Colorado, have enacted more specific laws requiring employers to provide work accommodations to certain high-risk individuals.
Scenario 2: If an employer is already aware of an employee’s underlying medical condition or risk factor, can or should the employer require the employee to remain at home? Generally, no, unless the employer determines through an individual assessment that the employee poses a “direct threat” under the ADA and there is no accommodation available, absent undue hardship, that will eliminate or reduce the risk so that it will be safe for the employee to return to work and perform essential job functions.
The most recent guidance from the EEOC is clear that broad-based exclusions of high-risk employees may be unlawful, no matter how well-intentioned. On May 5, 2020, the EEOC issued an FAQ on return to work as part of its technical guidance. Some of that guidance was interpreted by media outlets to allow employers to exclude high-risk employees from the workplace causing the EEOC to immediately retract the controversial Q&A. Two days later, new guidance was issued that makes the following points:
- If an employee does not request a reasonable accommodation, the ADA does not require the employer to take action.
- “If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at ‘higher risk for severe illness’ if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation.”
- Be forewarned: The ADA direct threat requirement is a high standard: “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 the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.”
- “Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.”
- If there are no accommodations that permit this, then an employer must consider accommodations such as teleworking, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits teleworking).
- An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to him/herself that cannot be reduced or eliminated by reasonable accommodation.
The Bottom Line for Employers: This is a complicated and complex issue, impacting a number of different laws and workplace policies. The following are five steps an employer can take now in anticipation of high-risk employees returning to the workplace:
- Employers should ensure that their ADA and FMLA processes are up to date and that administrators are trained on how to respond to accommodation requests from high-risk employees.
- For FMLA-eligible employees who can document that they cannot come to work because of a serious health condition, FMLA leave should usually be provided.
- Managers should be trained on how to respond if they are approached by a high-risk employee and instructed not to make broad-based assumptions if a person reveals an underlying disability.
- Employers should become informed now on possible accommodations whether that is personal protective equipment, architectural changes in the workplace, removing marginal job functions, changing work schedules or location (such as teleworking) to limit contact with other employees, or, absent undue hardship, offering a transfer or leave. Remember, what is reasonable and what is not may change from day to day. For example, if an employer has a diagnosed case of COVID-19 in the workplace, the risk for exposure for a high-risk employee becomes more significant and likely more difficult to eliminate through reasonable accommodation.
- If a high-risk employee takes leave, be familiar with what paid leave benefits may be available under existing policies and state and federal law, e.g., short-term disability, PTO, or state- or federal-mandated leave. Employers should consult with counsel to determine whether it may be advantageous to set up a specific voluntary leave or voluntary telework program for this group of employees and what the legal ramifications of doing so may be on employees who are not high-risk, but also request leave or telework as an accommodation for a disability.