On Tuesday May 5, 2020, the United States Equal Employment Opportunity Commission (EEOC) further updated its Technical Assistance Questions and Answers about COVID-19, the American with Disabilities Act (ADA) and other EEO laws. The latest EEOC update focuses on accommodating an employee with an underlying medical condition that may place the employee at greater risk from COVID-19.
New Guidance on Addressing Requests for Reasonable Accommodation
The EEOC raised the practical question of what an employee needs to do in order to request a reasonable accommodation because of a medical condition identified by the CDC as one that may put the employee at higher risk for severe illness from COVID-19. The EEOC stated that an employee, or a third party such as a doctor, must let the employer know that the employee needs an accommodation for reasons related to a medical condition. The communication should let the employer know that the employee has a medical condition that necessitates a change to meet a medical need. The EEOC indicated that the request can be made orally or in writing, and that the term “reasonable accommodation” or a reference to the ADA does not need to be explicitly mentioned.
After receiving a request, the employer may seek medical documentation and ask follow up questions to help determine whether the employee has a disability and if there is a reasonable accommodation that can be provided without imposing an undue hardship on the employer.
Guidance for Employers In Absence of an Accommodation Request
The EEOC also addressed the situation where an employee has not requested an accommodation, but the employer is aware that the employee has one of the medical conditions identified by the CDC and is concerned that the employee’s health will be jeopardized upon returning to the workplace.
The EEOC first confirmed that if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.
The EEOC then cautioned that “the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.” The only exception identified under the ADA, which the EEOC noted is a high standard, is where the disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation.
The EEOC specifically stated that a “direct threat assessment cannot be based solely on the condition being on the CDC’s list.” Rather, the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s specific disability. In making this determination, an employer is required to consider the duration of the risk to the specific employee, the nature and severity of the potential harm, and the likelihood and imminence of potential harm.
Even where an employer reasonably determines that an employee’s disability poses a direct threat to their own health, the EEOC makes clear the employer still cannot exclude the employee from the workplace unless the employer is unable to provide a reasonable accommodation without undue hardship to the employer. If there are no reasonable accommodations to remove the direct threat in the workplace, then the employer must consider whether accommodations such as telework, leave, or reassignment may be offered without undue hardship to the employer.
EEOC Offers Accommodation Examples
The EEOC provided specific examples of accommodation that, absent undue hardship, “may eliminate (or reduce to an acceptable level) a direct threat to the health of the employee.” These examples include:
The EEOC made clear that these are not an exhaustive list of examples, and encouraged employees and employers to be creative and flexible.
As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days. As always, we encourage employers to consult with counsel with their specific questions and concerns related to COVID-19.
