Published in NH Business Review (8/28/2020)
Q. Our company wants to protect those workers who may be at higher risk for severe illness if they get Covid-19. As we in NASHUA crease REGION our numbers in the office, may we require higher-risk employees to telework in order to avoid exposing them to the virus?
The Americans with Disability Act prohibits employers from barring employees from the workplace based solely on an employee being in an identified higherrisk group. This is the case even if the company has good intentions on protecting the employee. The Equal Employment Opportunity Commission has issued guidance detailing the analysis and high standard that an employer must meet in this circumstance.
The ADA prohibits employers from discriminating against qualified employees with a disability. The law further requires employers to provide those employees with reasonable accommodation unless doing so creates an undue hardship. A reasonable accommodation is a modification or adjustment that allows the employee to perform the essential functions of the job.
Employers must engage in an interactive process with employees who request reasonable accommodation. This involves gathering information about and communicating with the employee. For example, an employer may ask questions to determine whether the employee's condition is a disability, inquire into an employee's limitations due to the disability and how the requested accommodation may effectively enable the employee to continue performing the "essential functions" of the job or explore alternative accommodations.
Reasonable accommodations may include additional personal protective equipment such as additional or modified gowns or masks, barriers or shields that allow for increased separation from others or modified work hours or location to decrease contact with the public or coworkers.
They may also include telework.
(The Job Accommodation Network, a free service of the U.S. Department of Labor's Office of Disability Employment Policy, provides additional assistance for providing reasonable accommodations and has created information specific to Covid-19 at askjan.org/topics/COVID-19. cfm.)
The Centers for Disease Control and Prevention has identified categories of individuals and certain medical conditions that put individuals at a "higher risk for severe illness" if they contract the coronavirus. In other words, some people may be more prone to become severely ill when getting the virus, resulting in hospitalization, intensive care, a ventilator or death.
Specifically, the CDC reports that eight out of 10 Covid-19 deaths in the United States have been in adults 65 and older. It has also identified certain underlying medical conditions that put individuals at any age at a "higher risk for severe illness," including chronic kidney disease, chronic obstructive pulmonary disease (COPD) or serious heart conditions.
If an employee's higher-risk medical condition is a disability, the employee may request a reasonable accommodation. In that case, the interactive process and analysis should be conducted. Be mindful that an employee who is already receiving a reasonable accommodation may need a new or modified accommodation, absent undue hardship.
The EEOC has cautioned employers about taking unilateral or one-sided action based solely on an individual's status in a higher-risk group. The ADA does not require an employer to take action unless there is a request for a reasonable accommodation.
If an employer is concerned about an employee's health due to a known medical condition, the employer may not take action unless it finds that the employee is a "direct threat" to the employee or others in the workplace which cannot be eliminated or reduced by reasonable accommodation. This is a high standard and requires showing that the employee's disability poses a "significant risk of substantial harm" to the employee's own health based upon a reasonable medical judgment.
The analysis also includes consideration of measures that may be taken to protect the employee and other workers, and an employer may not exclude an employee from the workplace if there is a reasonable accommodation that reduces the risk, so that the employee can safely return and perform the essential functions of the employee's job.
As the EEOC makes clear, an "employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation."
While companies may have good intentions in protecting their employees during this pandemic, care must be taken in employment decisions that implicate the protections under the ADA.
Jennifer Parent, a director at McLane Middleton, chairs the firm's Litigation Department and is a member of its Employment Law Practice Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.