Are you ready to protect employees at higher risk for severe illness from COVID-19 as you reopen? That’s a question the CDC asks in its recently-released guidance for employers considering reopening. And the EEOC recently issued three new Q&As in the “Return to Work” section of its technical assistance guidance for COVID-19, instructing employers on managing “high risk” employees in compliance with the Americans with Disabilities Act (ADA). The below Q&A provides direction for employers regarding “high risk” employees returning to the workplace and reasonable accommodations to help keep those employees safer at work.

What is my employee required to do to request a reasonable accommodation if the employee has a medical condition the CDC says could put the employee at higher risk for severe illness from COVID-19?

The employee (or the employee’s representative, such as the employee’s doctor) must let you know the employee (i) needs a work accommodation (ii) for a reason related to the medical condition. The request can be made in conversation or writing, and does not need to use the term “reasonable accommodation” or even reference the ADA. Therefore, to ensure you don’t unintentionally run afoul of the ADA by missing a request for a reasonable accommodation, we recommend you review every communication from an employee (or employee’s representative) stating that the employee has a medical condition requiring a change at work as one that may require a reasonable accommodation. It is also important to train managers to be aware of these requests and to immediately inform HR if an employee mentions needing a change at work because of a medical condition.

What are the conditions the CDC has identified as putting employees at higher risk for severe illness from COVID-19?

The CDC has identified people 65 years and older and people living in a nursing home or long-term care facility as being at high-risk for severe illness from COVID-19. In addition, the CDC has identified as “high risk” people of all ages with underlying medical conditions (particularly if not well controlled), including:

  • People with chronic lung disease or moderate to severe asthma
  • People who have serious heart conditions
  • People who are immunocompromised. The CDC notes that many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
  • People with severe obesity (body mass index [BMI] of 40 or higher)
  • People with diabetes
  • People with chronic kidney disease undergoing dialysis
  • People with liver disease

An employee has made a request for an accommodation because she has one of the CDC’s “high risk” conditions. What are my next steps?

Ask questions and seek medical documentation from the employee to help you determine whether the employee has a medical condition or disability that needs accommodating. Then, determine whether there is a reasonable accommodation you can provide that will not cause your business undue hardship. Reasonable accommodations can take many forms (see below for further discussion). We recommend you document your actions, including responding to the employee’s request for accommodation. Treat all employee medical information you obtain as confidential and keep any written records in a file separate from the employee’s personnel file.

What if my employee doesn’t have one of the “high risk” conditions recognized by the CDC, but asks for an accommodation? Am I obligated to do anything?

It depends. The CDC’s list is not exhaustive, and when an employee requests an accommodation based on a disability under the ADA, an employer must determine (i) whether the employee has a condition that could qualify as a disability under the ADA and (ii) whether there is a reasonable accommodation the employer can provide that will not cause the employer undue hardship. However, if the employee asks for an accommodation and the accommodation is not related to a disability or medical condition, the employer does not have to provide an accommodation under the ADA.

One of my employees has one of the CDC’s “high risk” conditions, and I’m concerned about the employee returning to the workplace, but the employee hasn’t requested an accommodation. Am I required to take any action since I already know about the employee’s condition?

No. If the employee does not request an accommodation, you are not required under the ADA to take action.

Even if you want to keep the employee away from the workplace for her own safety, you can’t exclude her from the workplace solely because she has a CDC “high risk” condition, unless her disability poses a “direct threat” to her own health that cannot be reduced or eliminated by providing a reasonable accommodation.

How do I determine whether my employee poses a “direct threat” to her own health?

Determining whether an employee poses a “direct threat” to her own health is a multilayered and difficult analysis. An employer has to show the individual has a disability that poses a “significant risk of substantial harm” to her own health under 29 C.F.R. § 1630.2(r). And the analysis can’t be based solely on the fact that the employee’s condition is on the CDC’s list. Instead, your determination must be based on an individualized assessment of the employee, considering her specific disability (not just the characterization of the disability in general) and using the most current medical knowledge and the best available objective evidence.

Employers are required to consider:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that potential harm will occur; and
  4. The imminence of potential harm.

Practically, an analysis of these factors will include considerations such as the level of severity of the pandemic in the area where the employee works, whether the employee’s disability is well-controlled, the employee’s particular job duties (including the likelihood that the employee will be exposed to the virus at the worksite), and the employer’s hygiene and social distancing measures in the workplace.

I have determined my employee is a “direct threat” to her own health. Is it okay to keep the employee from returning to the worksite?

No. You still can’t exclude the employee from the workplace, or take any other adverse action, unless there is no way for you to provide a reasonable accommodation that would reduce or eliminate the direct threat (and that does not cause the company undue hardship). Under the ADA, you have to consider whether there are reasonable accommodations that would eliminate or reduce the risk to the employee so it would be safe for her to return to the workplace while still performing her essential job functions. You can do this by working with the employee to try to find an accommodation that would work. If no accommodations would permit the employee to stay safe while performing her essential duties, then consider accommodations such as:

  • Telework
  • Leave
  • Reassignment to a different job that would allow the employee to telework
  • Reassignment to a location in the workplace that would be safer for the employee to work, such as an area where the employee will have less contact with individuals or an area that will allow for increased cleaning and disinfecting

You can only bar the employee from the workplace if, after going through these steps and considering all the facts, you still conclude that the employee poses a significant risk of substantial harm to herself that cannot be reduced or eliminated by reasonable accommodation.

What are other examples of accommodations that, absent undue hardship, may eliminate (or reduce to an acceptable level) an employee’s “direct threat” to self?

Identifying an effective accommodation depends on an employee’s job duties and the design of the workspace. Besides the accommodations above, accommodations may include:

  • Additional or enhanced protective gowns, masks, gloves or other personal protective equipment beyond what you might generally provide to employees
  • Erecting a barrier that provides separation between an employee with a disability of condition and coworkers or the public
  • Increasing the space between an employee with a disability and others
  • Eliminating or substituting particular “marginal” functions (job duties that are incidental in nature compared to the “essential” functions of the employee’s position)
  • Temporary modification of work schedules (to decrease contact with coworkers and public when working or commuting)
  • Moving the location of where the employee performs work (for example, moving a person to the end of a production line rather than the middle if it allows greater social distancing)

These are only a few ideas. Remember, you do not have to provide the specific reasonable accommodation requested by the employee. Work in collaboration with your employee to discuss possible ideas, and be creative and flexible in coming up with accommodations that will keep your employees safe while not posing an undue burden on your company. Please contact your Baker & McKenzie employment attorney if you need assistance navigating these or other employment-related issues.