The guidance comes as many employers wonder how or if they can reinstate laid off, furloughed, or even newly-hired employees as the virus continues to spread
The Equal Employment Opportunity Commission (EEOC) recently updated its guidelines in response to the COVID-19 outbreak as they relate to the Americans with Disabilities Act (ADA).
Originally developed to address the 2009 H1N9 pandemic, their guidelines have been updated to address COVID-19. The new information provides a road map for employers to assist staff members who have a disability and/or are at high risk for significant outcomes if exposed to the virus in the workplace, as well as the risk other employees may pose.
The guidance covers 3 main issues:
- What to do if an employee with a disability requests a COVID-19 accommodation
- How to manage employees you believe may be at risk, but don’t ask for an accommodation
- What to do if you suspect an employee poses a high risk of infecting others.
These scenarios are likely the most common employers will face as they begin the process of returning employees to the workforce.
A requested accommodation
Employees who request an accommodation should get an immediate response from employers. They will need to address their situation on a case-by-case basis. It’s important to refrain from making a blanket policy with regard to the needs of staffers under the ADA. Employers are typically required to accommodate the needs of an employee with a disability, unless the accommodation poses an undue hardship on the employer. As COVID-19 enters the equation, employees whose health issues did not put them at risk in the past may seek assistance during the outbreak.
It’s important to refrain from making a blanket policy with regard to the needs of staffers under the ADA.
For those workers who are at higher risk of significant results if exposed to COVID-19, accommodations may have to be made.
The CDC outlines this can include older workers and those who have an underlying medical condition such as diabetes, heart disease, lung diseases, cancer, asthma, and HIV.
For these workers, exposure to the virus could be devastating. If these staff members request an accommodation, it will be important to work with them and their physician to determine the safest course of action.
Employers may have a variety of options or few, depending on the employee and the work that needs to be performed. An immunocompromised employee would likely be at the highest risk for exposure if they were returned to a high-traffic position that interacts with the public. For that staff member, alternate work or a continued leave of absence may be the only options.
Another staffer with the same medical condition may be more easily accommodated if their work can be done remotely. The challenge for employers will be to work with the staffer and medical professionals as much as possible to find solutions. If there are none and there is no safe way to return the staffer to the workplace, continued leave may be the only answer.
What to discuss
When a disabled employee or one at high risk requests an accommodation, be ready to discuss all aspects of the situation. You’ll want input from them and their physician, if applicable, about how their disability creates a limit on their return to full, pre-pandemic work status.
You will be within your rights to request documentation from their healthcare provider for details on what limitations they recommend, and how, if at all, they may be accommodated.
If an accommodation is requested, work with the employee to determine whether the option will pose a solution or a hardship. For example, an employee who normally works in a front-facing position may request more isolated duties. If there are no such roles in your organization, and you don’t have the ability or need to create one, the accommodation may pose an undue hardship. In that case, you would not be able to meet the staff member’s needs.
If an accommodation is requested, work with the employee to determine whether the option will pose a solution or a hardship.
If you could move that employee to a location or role where they are not in constant contact with the public, the accommodation should likely be granted. Other solutions may include telework or additional time off. Each request should be reviewed individually and determinations made with the employee and the recommendations of their healthcare provider.
Remember an employer does not have to provide an accommodation if it poses an undue hardship or “significant difficulty or expense.” Business owners should do their best to make an accommodation that works for the organization and the employee.
No request for accommodation
When employees you know are disabled do not ask for an accommodation – even if it may involve increased risk due to COVID-19 – for the most part the employer’s hands are tied.
You may not impose an accommodation on an employee who does not request one, nor may you ask about an employee’s personal health information. This may be challenging for business owners as they weigh the risk versus the benefit of reinstating an employee who has been laid off or furloughed.
You may be aware the staff member has a financial need to return to work, but worry about the threat to their health and wellbeing.
The best case scenario in this instance may be to try to make adjustments you think might mitigate their risk without impacting the terms of their employment. You cannot demote them to a lower risk, lower responsibility and/or lower paying job without violating their rights.
You cannot separate or isolate them either. If you decide to separate all employees to lower the risk of contamination, you will be within your rights as an employer. If you separate only those you suspect have a disability or may be at higher risk, you will be discriminating against them on the basis of a real or perceived disability. It is necessary to tread carefully to not violate their rights if an employee does not request an accommodation, whether for COVID-19 reasons or any other.
Some staff members may have traveled to trouble-spots around the globe: others may have had coronavirus or been in direct contact with someone who was infected. In these instances, you may perceive the employee poses a “direct threat” to the health and safety of themselves or others. Reinstating these employees must be managed carefully to mitigate risk to the business, the employee, their coworkers and the public.
The ADA defines a direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
When a worker, with or without a disability, poses such a threat to themselves or others, they are not protected by the nondiscrimination terms of the ADA if reasonable accommodations cannot eliminate that threat.
The EEOC suggests 4 factors determine whether the risk is legitimate and poses a direct threat. They must be based on factual information, not perceptions or beliefs. These will have to be quantified by a physician, if necessary, to assure all relevant information is available before you make a determination:
- Duration of the risk
- Nature and severity of the potential harm
- Likelihood that potential harm will occur, and
- Imminence of the potential harm
The EEOC recognizes the COVID-19 pandemic meets the standard of a direct threat. For employees who have been infected, or those who have attended to the needs of someone who was infected, an employer will be within their rights to exclude the staff member from the workplace until their physician certifies they no longer pose a risk to themselves or others. Guidance has been provided by the agency for employers to follow before reinstating an employee.
For employees who have been infected, or those who have attended to the needs of someone who was infected, an employer will be within their rights to exclude the staff member from the workplace until their physician certifies they no longer pose a risk to themselves or others.
COVID-19 is not a disability in and of itself, rather it’s a viral infection that is considered transient. But because of the significant threat COVID-19 poses, employers are allowed to ask disability-related questions about an employee’s exposure/experience with the disease and request medical exams and clearance prior to returning an employee to the workplace.
These can include:
- Taking employee temperatures before they report to the worksite
- Requiring employees self-report any symptoms of the disease they may have or be experiencing
- Reporting any direct exposure they’ve had to COVID-19
Employers are within their rights to send any worker home if they begin experiencing symptoms consistent with COVID-19 while on the job.
Getting the word out
As with all disability-related issues, it’s incumbent on candidates or employees to request an accommodation, not the other way around. You cannot ask if they will need an accommodation, you may only respond to their request for one. However, you may be aware some of your workers may be at higher risk for significant outcomes during the pandemic, so what do you do?
The best course of action is to communicate in writing before employees return to work. Include what steps you will be undertaking to make the workplace as safe as possible and strongly emphasize employees are within their rights to request an accommodation under the ADA, if necessary. Remind staffers that you are ready and willing to help with their requests for accommodations.
In the same message, remind staff they are within their rights to request additional time off if the pandemic is impacting their ability to find suitable caregiving assistance for any dependents in their household. It will be up to staff members to make any request for accommodation, and up to you to work with them to accommodate any reasonable requests made.