Equal Employment Opportunity Commission Releases Return to Work Guidance
By Kevin M. Mosher • May 21, 2020
As many states begin reopening their economies, many employees are heading back to the office. Employers around the country are preparing for reopening and are developing plans to protect their employees. Many employers are especially concerned for the safety of employees who are considered high risk for severe illness by the Center for Disease Control and Prevention (CDC). Though employers are obligated to provide their employees with a safe work environment and to reasonably accommodate qualified employees’ disabilities upon request, they are prohibited from treating employees disparately based on protected characteristics.
Should we tell high-risk employees to stay home?
No. You should not take any adverse employment action against an employee simply because they fall into the high-risk group. Under the Americans with Disabilities Act (ADA), an employer may take action against an employee if the employee’s return to the workplace poses a direct threat to the employee’s health. Otherwise, you should only provide accommodations to qualified disabled employees who request an accommodation.
How do I know if an employee’s return to work poses a direct threat to his or her health?
This is a high standard. To show that the employee’s return to work poses a direct threat to their health, you must establish that the employee’s disability poses a “significant risk of substantial harm” to their own health. This determination must be made using an individualized assessment based on reasonable medical judgment about the employee’s disability using the most current medical knowledge and/or the best available objective evidence. You should also consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. This can include a consideration of the severity of the pandemic the area, the employee’s health, and the employee’s particular job duties.
Can we prevent the high-risk employee from working if we have determined that working poses a direct threat to the employee’s health?
Not necessarily. In this situation, you should engage in the interactive process to determine whether a reasonable accommodation exists that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace and perform their job duties. If after going through the interactive process there is still no reasonable accommodation available to reduce the risk to the employee, then you may tell the employee that they cannot come into the workplace.
Can we ask employees whether they will need a reasonable accommodation?
Yes. Instead of prohibiting certain employees from entering the workplace based on a known disability, employers looking to protect more vulnerable employees may open the door to the interactive process by asking employees with disabilities to request accommodations that they believe they may need when the workplace re-opens.
What are some examples of reasonable accommodations?
Reasonable accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to the employees returning to is workplace. Installing partitions or changing the area in which the employee works may also be reasonable accommodations, as can changed temporary modified schedules and work from home options.
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