By Lionel Schooler
Employers have had to confront many novel challenges with the COVID-19 outbreak, particularly having to cease or significantly reduce business activities. Now, they must confront the equally difficult challenge of reopening. Personnel issues are at the forefront of this undertaking. One such issue is the degree to which employers may unilaterally require employees who are identified as higher risk for severe illness from COVID-19 to stay at home.
This particular issue highlights the potential conflict of employers wishing to reopen or return employees to the workplace while protecting individuals in their workforce and simultaneously ensuring no infringement of employees’ legal protections. The foremost of such protections resides in the Americans with Disabilities Act:
- On the one hand, the ADA protects qualified employees who either have a disability (that is, a physical or mental impairment or a record of such an impairment) or who are regarded as disabled, and who can perform the essential functions of their jobs with reasonable accommodation;
- On the other hand, the ADA recognizes that employers have to assess whether the presence of particular employees poses a direct threat to the health and safety of the workforce, including the employee, even while considering reasonable accommodations.
Unfortunately, in this rapidly changing legal environment, the EEOC’s initial guidelines triggered controversy because they seemed to suggest that employers could exclude “high risk” individuals from returning to work solely because of their medical status. Accordingly, within two days of first issuing its guidance, the EEOC on May 7 abruptly removed the guidance from its website and replaced it with a modified guidance.
This modified guidance re-emphasizes the ADA’s protections by focusing upon its prohibition against excluding employees from the workplace solely because they have risky medical conditions (for example, serious heart problems, diabetes, or asthma).
This guidance stresses that the ADA does not require an employer to take any action if a worker doesn’t ask for an accommodation. But the EEOC nevertheless cautions that excluding such a worker from returning to the workplace isn’t allowed without a determination about the direct threat, which the EEOC characterized as a high standard. To ascertain such a threat, the EEOC reminds employers that their analysis must include an individualized assessment based on relevant factors to determine whether the threat can be reduced or eliminated through a reasonable accommodation. According to the modified guidance, threat analysis must also be based upon a reasonable medical judgment about an individual employee’s disability, not upon the disability in general, “using the most current medical knowledge and/or on the best available objective evidence.”
The modified guidance therefore underscores that meeting this high standard requires consideration of a wide range of factors, including:
- the severity of the potential harm to the worker,
- the chances that such harm will occur,
- the likelihood that a person will be exposed to COVID-19 at work and
- the potential impact of any protective measures the employer is taking to protect the workforce as a whole.
The guidance goes on to emphasize that even if an employer does conclude that a worker’s disability poses a direct threat to that person’s health, the individual still can’t be barred from the workplace “unless there is no way to provide a reasonable accommodation” that doesn’t pose an undue hardship on the employer. If such an accommodation doesn’t exist in the workplace, employers are expected to weigh other options such as telework, leave, or reassignment to a different job in a safer work environment.
Under this modified guidance, employers will now be required principally to consider taking steps that can enhance, rather than automatically exclude, employees with medical risks, including innovatively adopting alternative means for job performance.
Meanwhile, EEOC guidance regarding excluding employees who themselves present COVID symptoms or implementing screening procedures such as temperature checks remains in place.
Keeping up with fluctuating regulatory guidance will be challenging to employers attempting to jump start their operations going forward. Jackson Walker can assist with navigating the guidelines to ensure efficient and compliant use of lawful procedures.
Lionel M. Schooler is a management-side employment lawyer and recognized authority on employment law, federal appellate practice, and arbitration. Lonnie’s employment practice focuses on counseling clients and litigating, on a nationwide basis, claims under all employment laws, wage and hour claims, and investigations by the Equal Employment Opportunity Commission, the U.S. Department of Labor, and the Texas Workforce Commission. Lonnie is also experienced as an arbitrator on the Commercial and Employment Panels of the American Arbitration Association and as an advocate. He was selected for inclusion by the National Association of Distinguished Neutrals and is certified as a Fellow of the Chartered Institute of Arbitrators for international arbitration matters. Since 2017, Lonnie has served on the Board of Directors of the Houston Bar Association. His previous editorial experience includes serving as editor-in-chief of The Houston Lawyer, a bimonthly publication of the Houston Bar Association.
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