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Avoid Benevolent Discrimination as At-Risk Employees Return to Work

May 25, 2020
Source: HR Dive

Dive Brief:

  • The Americans with Disabilities Act (ADA) does not obligate an employer to take action if an employee with a medical condition that places them at higher risk for severe illness from the novel coronavirus doesn’t request an accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) said in guidance updated May 7.
  • The Centers for Disease Control and Prevention (CDC) has published a list of conditions that may put individuals at higher risk for severe COVID-19. Employers may be concerned they would jeopardize workers’ health by returning them to work if they have one of the conditions. But employers may not exclude such employees or take any other adverse actions against them "solely because" of those disabilities, EEOC said. Employers may not take such actions unless an employee’s disability "’poses a direct threat’" to his or her health that a reasonable accommodation could not reduce or eliminate, the agency said.
  • To obtain an accommodation, employees generally need to notify employers of their need for a change, as related to the underlying condition, EEOC said. Employers may accommodate workers with underlying conditions by giving them additional or enhanced personal protective equipment such as gowns, masks and gloves. They may need to build a barrier that separates such employees from co-workers and others. These types of accommodations may affect job duties, as well, eliminating or substituting particular "marginal" functions. Other possible accommodations include changes to work schedules or work locations to provide for greater social distancing.

Dive Insight:

EEOC’s pandemic-specific guidance builds on what employers likely know about the ADA already. The ADA generally prohibits employers from discriminating against workers based on their disabilities. And the law obligates companies to provide reasonable accommodations that enable employees to carry out the essential functions of their jobs.

This guidance does impart some nuance, however, in addition to providing a few reminders of the basics.

Employers need to understand the definition of a "direct threat" — the standard that a situation must meet for employers to take adverse actions against employees who are at higher risk for severe illness. A direct threat is not established by an employee’s disability falling on the CDC’s list, EEOC said. "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 on the best available objective evidence."

Employers must assess factors such as duration of the risk, nature and severity of potential harm, and likelihood and imminence of such harm, the commission said. Employers will also need to take into account the severity of the pandemic based on their location, as well as the employee’s job duties and the likelihood of exposure.

If this assessment leads an employer to believe an employee’s disability would cause a direct threat to his or her health, the employer may not take any adverse actions unless it cannot provide a reasonable accommodation. An employer must consider whether such accommodations "would eliminate or reduce the risk" to the point it would make the workplace safe for the employee while permitting essential functions, according to the agency. If on-site accommodations don’t permit this, an employer will need to consider accommodations such as telework, leave or reassignment.

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