United States: EEOC Revisits – And Revises – COVID-19 Return To Work Guidance On Accommodating Employees With Underlying Medical Conditions

The Equal Employment Opportunity Commission continues to update its guidance regarding the interplay between COVID-19, the Americans with Disabilities Act and other EEO laws. Divided into seven sections, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws addresses employers' frequently asked questions on disability-related inquiries and medical exams, hiring and onboarding, reasonable accommodations and returning to work in light of the COVID-19 pandemic.

In this ongoing health crisis, employers have been openly concerned with the manner and extent to which accommodations should be provided to employees with known underlying medical conditions and the extent to which employers should, and lawfully can, consider asking employees whether they have such medical conditions.

On May 5, 2020, the EEOC published three new Q&As under its "Return to Work" section, G.3, G.4 and G.5. However, hours after release, the EEOC removed Q&A G.4 from its site, which had addressed the accommodation of employees with known underlying medical conditions. At the time, the EEOC stated it would revise and clarify this particular guidance on account of its being "misinterpreted in press reports and social media." Employers have anxiously awaited this clarification.

On May 7, the EEOC posted its newly revised Q&A G.4 and reaffirmed that an employer may not exclude an employee from the workplace solely because the employee has a medical condition identified by the CDC as placing the employee at "higher risk for severe illness" if the employee gets COVID-19.

Notably, Q&A G.4 provides that if an employee does not request a reasonable accommodation, the ADA does not require the employer to take any action for that employee. This is consistent with the EEOC's guidance in Q&A G.3, which emphasizes that it is an employee's responsibility to initiate the interactive process and that in order for an employee to request an accommodation, the employee (or an authorized third party, such as a healthcare provider) must notify the employer of the need for a "change" for reasons related to a medical condition. The guidance further confirms that only after the employee (or representative) has made this request can the employer inquire or seek medical documentation regarding the employee's medical condition and possible accommodations.

While the EEOC acknowledged that an employer may be concerned about jeopardizing an employee's health by returning to work if the employee has one of a number of underlying medical conditions, Q&A G. 4 expressly prohibits an employer from excluding an employee from the workplace or taking any other adverse action "solely" on the basis that the employee has a disability that the CDC identifies as potentially placing the employee at "higher risk for severe illness" if the employee contracts COVID-19. The EEOC reaffirms that excluding the employee from the workplace or other adverse action would be permitted only after the employer has determined the employee poses a "direct threat" to his/her own health that "cannot be eliminated or reduced by a reasonable accommodation."

The ADA defines a direct threat as posing "significant risk of substantial harm" to the employee or others. In Q&A G.4, the EEOC emphasizes that "direct threat to self" is not established simply because an employee has a condition on the CDC's list.

Instead, the agency reiterated that the direct threat analysis is a high standard, which requires an individualized assessment of the employee's known medical condition. An employer must consider a multitude of factors, including medical knowledge regarding the employee's disability, the duration of the risk, nature and severity of the potential harm, the employee's job duties, the containment of the pandemic in the area of the worksite, the protective measures in place at the worksite and the employee's likelihood of exposure in light of the protective measures in place.

The EEOC further confirmed that even if an employer concludes that the employee's disability presents a direct threat to the employee's own health, an employer may not exclude an employee from the workplace or engage in other adverse action without first considering whether there is a reasonable accommodation that may be provided that would safely enable that employee to return to work to perform the essential functions of his or her position.

Q&A G.5 provides an illustrative list of possible accommodations that include providing the employee with additional personal protective equipment, installing barriers to separate employees, as well as implementing changes to work schedules and eliminating or substituting "marginal" job duties. Q&A G.4 reiterates that where those accommodations are not feasible, an employer must consider additional accommodations such as telecommuting or additional leave. The EEOC concluded its guidance on accommodations by encouraging employers and employees to be creative and flexible.

Notably, at no point in the updated guidance does the EEOC indicate that an employer may unilaterally ask an employee about an underlying medical condition. In fact, the EEOC commented in its press release accompanying the updated guidance that it had previously addressed permitted workplace screening and exclusion of those who pose a direct threat to others due to having COVID-19 or symptoms that could be transmitted to others. Such permitted temperature testing and screening for COVID-19 symptoms is addressed in Section A of the guidance.

It is also worth noting that in the oft-cited EEOC pandemic guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which was originally issued in 2009 during the spread of the H1N1 virus and reissued on March 19, 2020, to incorporate updates regarding the COVID-19 pandemic, the EEOC emphasized that during a pandemic, an employer may not ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications. (See, Q.9). The EEOC goes on to state that:

Unlike other portions of this pandemic guidance, the EEOC has not updated this particular portion for COVID-19. Thus, the EEOC has not yet directly commented on whether it envisions a situation where there will be sufficient objective medical evidence from public health advisories and local area and workplace conditions related to COVID-19 to enable an employer to reasonably conclude that employees with a known disability will face a direct threat if they contract COVID-19 and support an employer making an unsolicited, disability-related inquiry. Given that these circumstances are exceedingly narrow, employers should seriously consider not proceeding with such inquiries without advice of counsel.

What This Means for Employers

As employers continue to plan for workplaces to reopen, they must be increasingly mindful of their duty to reasonably accommodate disabled employees. However, as reinforced by the EEOC's guidance, this duty to accommodate and to maintain a safe working environment does not create a limitless right to inquire about an employee's underlying medical conditions. Employers should carefully review their return-to-work protocols related to employee temperature and symptoms screenings, as well as the process for requesting and responding to accommodation requests to ensure that such inquiries and process are consistent with the ADA and the EEOC's guidance, as well as the CDC, OSHA and state and local health advisories for return to work.

For More Information

If you have any questions about this Alert, please contact Linda B. Hollinshead, Sarah A. Gilbert, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, or the attorney in the firm with whom you are regularly in contact.

Originally published 8 May, 2020

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