COVID-19: EEOC Clarifies When “Higher Risk” Employees May Be Excluded From the Workplace

Businesses are starting to bring employees back to work; meanwhile, COVID-19 is still a reality and concern that employers are grappling with. Employers are trying to do their best to limit the spread of the disease in the workplace and want to protect those employees who are most vulnerable. The Equal Employment Opportunity Commission (EEOC) recently updated its “What You Should Know” website with information about when employees can be excluded from the workplace because of their status as a “higher risk” individual, consistent with protections under the Americans with Disabilities Act (ADA).

A person who is at “higher risk for severe illness” from COVID-19 includes:

• People 65 years and older
• People with chronic lung disease or moderate to severe asthma
• People who have serious heart conditions
• People who are immunocompromised (e.g., 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 employer cannot take any adverse action against higher risk individuals due to COVID-19 based on their disability unless the employee’s disability poses a “direct threat” to the person’s health that cannot be eliminated or reduced by reasonable accommodation. “A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general…”

Even where there is a direct threat, there must be no way to provide a reasonable accommodation (absent undue hardship). This is when the employer must engage in the interactive process. First, the employer must evaluate whether an accommodation can be made to allow the employee to return to the workplace while still permitting performance of essential functions. If returning is not an option, then the employer must consider accommodations such as remote work, leave, or reassignment (e.g., to a position that is safer for the employee or that allows remote work). Only after engaging in this process and determining that the employee poses a significant risk of substantial harm to themselves that cannot be reduced or eliminated by reasonable accommodation, can the employer then exclude the person from the workplace.

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace; erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others; elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position); temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting); or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

Although this seems to be an exception to the general protections under the ADA, it is a very high standard that should be reviewed by legal counsel before employers rely on it to exclude an individual or otherwise diminish an individual’s terms and conditions of employment.

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