On Thursday May 7, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated and clarified its previous guidance as to how employers should treat employees with underlying medical conditions amidst the COVID pandemic. The link to the guidance can be found here.  As we have previously blogged on 5/7 and 3/2, the EEOC has provided regular guidance on the impact of laws prohibiting discrimination and requiring accommodation in the workplace during the COVID pandemic.

In its latest guidance, the EEOC has established that employees who need a COVID-related accommodation do not need to use any “magic words” in requesting same, but only need to advise the employer that they have an underlying medical condition that requires some change to the employee’s work environment. That advice will trigger the interactive process between the employer and employee and require the parties to explore whether the employee may perform the essential functions of the job with or without a reasonable accommodation and provided that such reasonable accommodations do not impose an undue hardship on the employer.

The EEOC also makes clear that employers may also not exclude an employee from returning to the workplace solely because the employee has a condition identified by the  Centers for Disease Control (CDC) as placing the employee at “higher risk for severe illness” if the employee contracts COVID.  Rather, to bar an employee from the workplace based on his or her condition, an employer must show a “significant risk of substantial harm” through an individualized assessment based on reasonable medical judgment about this employee’s disability.   The employer is required to conduct a “direct threat” analysis to determine whether the employee poses a direct threat to him or herself or others at the workplace. This analysis requires consideration of 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 harm.  Employers will also have to consider the impact of the pandemic in the geographic area, and the likelihood that the employee would be infected at work.  Assuming this analysis leads to the conclusion that the employee poses a “direct threat” to himself or others, before excluding the employee from the workplace (or taking other adverse action), the employer must consider whether the employee can perform the job with a reasonable accommodation.

The EEOC has provided that reasonable  accommodations include providing protective gowns, masks, gloves or other gear, erecting barriers, eliminating marginal functions, and modifying work schedules.  If none of these options are viable, the employer must consider telework, leave or reassignment, which are also considered to be reasonable accommodations.

As the EEOC FAQs make clear, “[a]n 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 himself that cannot be reduced or eliminated by reasonable accommodation.” See FAQ G.4.

In making determinations as to when and how employees may return to the “workplace,” employers are well advised to consult with counsel to ensure that they are compliant with a myriad of federal and state laws.

 


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.