As employers start planning to reopen, there have been questions about how to implement COVID-19 risk-reduction measures in way that is consistent with workplace discrimination laws.  On Thursday, May 7, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued revised guidance addressing the “Return to Work” and compliance with the Americans with Disabilities Act (“ADA”).  The guidance explains how businesses should handle accommodations for “high risk” employees with underlying medical conditions.

The guidance was initially published two days earlier, but the EEOC pulled it from the website hours later, explaining that it was “misinterpreted in press reports and social media.”  The EEOC’s initial post was interpreted by some as allowing employers to exclude employees with underlying medical conditions that place them at a higher risk of severe illness if they contract COVID-19.

In the guidance released on Thursday, the EEOC clarified 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 EEOC explained that employees with underlying medical conditions cannot be excluded “unless the employee’s disability poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation.”

A “direct threat” cannot be established based solely on an employee having a condition included on the CDC’s list.  Instead, the ADA requires an individualized assessment of risk factors based on reasonable medical judgment about the employee’s disability.  This analysis should assess individual factors related to the employee’s condition, as well as external factors like the severity of the pandemic in a particular area and the likelihood of the employee being exposed at the worksite.

The new guidance also provides examples of possible accommodations for “high risk” employees.  According to the EEOC, possible accommodations include, but are not limited to: (1) enhanced protective equipment; (2) a workspace that allows for greater separation from others in the workplace; (3) elimination of non-essential functions; and/or (4) a modified work schedule.

As employers begin to prepare to bring employees back into the workplace, it is important to make sure disability accommodations are handled appropriately.  When an employee requests a disability accommodation, employers should initiate the “interactive process” to determine whether an accommodation can be provided.  In addition, employees should not be excluded based on an underlying medical condition unless the employer can show that there would be a significant risk of substantial harm to the employee that cannot be reduced or eliminated by reasonable accommodation.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.