On March 23, 2020, we wrote about guidance from the U.S. Equal Employment Opportunity Commission (EEOC) related to COVID-19’s effect on Titles I and V of the American with Disabilities Act (“ADA”), and Section 501 of the Rehabilitation Act. The EEOC’s guidance was provided while state and local governments were issuing shelter-in-place directives, prompting changes to employment relationships, such as furloughs, layoffs, schedule changes, and work-from-home policies. With many government entities modifying shelter-in-place orders, the EEOC recently issued return to work guidance for employers. The EEOC discussed five topics related to employees returning to work.

1. ADA Compliant Screening of Employees For COVID-19.

The ADA prohibits employers from requiring a medical examination or inquiring about whether an employee has a disability or the nature of a disability unless the examination or inquiry is job-related or meets a business necessity. A reasonable belief based on objective evidence that an employee will pose a direct threat due to a medical condition is an exception to the general prohibition of medical examinations and inquiries. In our previous blog post, we noted that guidance from the CDC or another public health authority may satisfy the objective evidence requirement.

According to the EEOC, employers are considered to be in compliance with the ADA “as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.” However, employers must avoid unlawful disparate treatment in decisions related to screening and exclusion.

2. Personal Protective Gear (PPE) And Infection Control Practices.

Employers may require employees to wear PPE and observe infection control practices. However, an employer may have to provide reasonable accommodations related to the employer’s PPE and infection control requirements. The reasonable accommodation may be required under various EEO laws, such as the ADA (if the employee has a disability) or under Title VII (religious accommodations).

3. Requesting Reasonable Accommodations Due to a Medical Condition That May Place the Employee at Higher Risk for Severe Illness From COVID-19.

The CDC published a list of medical conditions that may put a person at a higher risk of suffering severe illness from COVID-19. These medical conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, diabetes, liver disease, chronic kidney disease (undergoing dialysis), and people who are immunocompromised. If an employee has one of the underlying conditions published by the CDC, the employee may be entitled to a reasonable accommodation. The employee or a third party (such as the employee’s doctor) must inform the employer of the need for a reasonable accommodation due to the underlying condition. The request may be verbal or written and does not have to include magic phrases like “reasonable accommodation” or “ADA.” In response, an employer may seek medical documentation or ask questions to help determine whether the employee has a disability or whether a reasonable accommodation can be provided.

4. Employees with A Higher Risk for Severe Illness From Covid-19 That Have Not Requested Accommodation.

The EEOC has made clear that the ADA does not require employer action if the employee does not request a reasonable accommodation – even if the employer knows the employee’s medical condition puts the employee at a higher risk of a severe illness form COVID-19. The ADA prohibits the employer from excluding the employee or taking adverse action unless the employee poses a “direct threat” to the health of that employee or others. Notably, the ADA’s direct threat defense is a high standard. An employer must show that an employee has a disability presenting a “significant risk of substantial harm” to the health of that employee or other employees. And the fact an employee’s underlying condition is on the CDC’s list – by itself – does not meet the direct threat requirements.

In assessing whether a direct threat exists, employers must consider the duration of the risk, nature of risk, the likelihood of potential harm occurring, and other factors. The EEOC warns that “[e]ven 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).”

5. Examples of Accommodations.

The EEOC provided examples of accommodation that, absent undue hardship, may eliminate a direct threat or reduce a direct threat to an acceptable level. Protective gowns, masks, gloves, barriers to ensure proper distances between employees and customers, temporary work schedule changes, changing the location where work is performed, and designing one-way aisle are all examples of accommodations. The EEOC also encouraged employers and employees to be creative and flexible.

The guidance from the EEOC and public health authorities will likely continue to change as the COVID-19 pandemic evolves and government entities modify restrictions. Employers should continue to monitor the most current information from public health authorities and the EEOC.

The attorneys at Chilivis Grubman assist businesses of all types and sizes in connection with employment-related investigations and litigation, including investigations by the EEOC, and lawsuits filed under the various employment-related statutes including the ADA, FLSA, and Title VII. If you need assistance with such a matter, please contact us today.