More guidance from the EEOC regarding COVID-19 and the ADA
May 7, 2020
We’re entering the fifth month of a national public health emergency regarding the COVID-19 pandemic, and it’s become clear that employers and human resource professionals will need to apply and rethink traditional employment law concepts in a new environment. The Equal Employment Opportunity Commission (“EEOC”) once again issued some updated guidance for employers who are trying to comply with requirements under the Americans with Disabilities Act.1
One of the more pressing issues that employers are faced with right now is how to proactively address employees who are returning to work who might have pre-existing conditions that make them more susceptible to COVID-19. In its updated guidance, the EEOC reiterates that employers are allowed to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. The ADA permits employers to exclude employees from working if they have a medical condition that presents a direct threat to their own health and safety, or the health and safety of others.
Employees with medical conditions that may place them at higher risk for severe illness from COVID-19 are entitled to request a reasonable accommodation. Both employers and employees remain obliged to participate in the interactive process, which may include the employer asking questions and seeking medical documentation, to help decide if the employee has a disability and if there is a reasonable accommodation that does not pose an undue hardship.
The CDC has identified several medical conditions that might place employees at higher risk of severe illness. In its updated guidance, the EEOC cautions employers that employees who do have a higher risk of severe illness cannot be automatically excluded from employment unless they pose a direct threat. The EEOC also reminds employers that the direct threat requirement constitutes a high standard, which cannot be satisfied simply because an employee’s medical condition has been identified by the CDC as presenting a higher risk of severe illness. Even if an employee’s pre-existing medical condition constitutes a direct threat to their own health in the age of COVID-19, employers still must determine whether a reasonable accommodation might exist.
The EEOC sidestepped one important issue: How should an employer proactively address an employee with a pre-existing medical condition when the employee has not requested an accommodation? The EEOC blithely notes that if an employee does not request an accommodation then the employer does not have to take any action. In terms of complying with the ADA for that individual, that’s helpful – but only to an extent. It doesn’t help employers who want to make sure that an employee’s preexisting condition is not worsened in the event they are exposed to COVID-19. In any event, the ADA doesn’t require employers to disregard reality. If an employee has previously disclosed that they have a pre-existing medical condition, and that condition has been identified by the CDC as placing someone at a high risk of severe illness, the law does not prevent an employer from having a conversation with the employee about returning to work. In fact, prior to COVID-19, there were other situations where the EEOC previously opined that employers were obliged to participate in the interactive process even if the employee had not requested an accommodation.
In sum, employers who are on notice that an employee has a pre-existing condition would be well-served to make sure that the employee is comfortable returning to work, doesn’t need an accommodation, and can do so without posing a direct threat.