EEOC Adds Q&A on Reasonable Accommodation Upon Return to Work

By Francis T. Barnwell and Maryann Yelnosky - Bullard Law

May 7, 2020

On May 7, 2020, the EEOC once again updated its Technical Assistance overview “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws” providing answers to three additional questions focused on reasonable accommodation issues upon employees’ return to the workplace, available here.

The first Q and A explains how an employee can request an accommodation if they have a medical condition that the CDC says may put them at higher risk for severe illness from COVID-19. The employee must let the employer know that they need a change related to a medical condition, i.e. one of the conditions identified by the CDC. In response, the employer may ask questions or seek medical documentation to determine if the employee has a disability and if there is a reasonable accommodation that the employer can provide. (Q&A G.3)

The second Q and A addresses what an employer can do if it knows that an employee has a medical condition that the CDC has identified as placing a person at a higher risk for severe illness, is concerned that the employee will be at higher risk when they return to the workplace, and the employee has not requested an accommodation. Importantly, if the employee does not request a reasonable accommodation, the ADA does not mandate that an employer take action.

In addition, the ADA does not allow an employer to exclude the employee from the workplace solely because the employee has a condition that the CDC identifies as potentially placing the employee at a higher risk for severe illness if the employee gets COVID-19. Such an action is not permitted unless an employee’s disability creates a direct threat to the employee’s health that cannot be managed by a reasonable accommodation. Direct threat is a high standard and the employee’s disability must pose a significant risk of substantial harm to the employee. That assessment must be an individualized assessment based on current and reasonable medical knowledge and judgment, and the best available objective evidence. In other words, having a condition listed by the CDC, alone, does not mean the disability poses a direct threat to the employee. The employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the harm will occur and the imminence of the potential harm. This will likely require an evaluation of the severity of the pandemic in a particular area, the employee’s own health, and the likelihood of exposure in the workplace (including the measures that an employer is taking to protect all employees).

If an employer determines an employee’s disability poses a direct threat to their own health, the employer should first see if there is a reasonable accommodation that can be provided to eliminate or reduce the risk and allow the employee to return to the workplace, based on an interactive process with the employee. If such an accommodation cannot be devised, then other accommodations such as telework, leave, or reassignment should be considered. Only when an employer determines that an employee’s disability poses a significant risk of substantial harm to that employee that cannot be reduced or eliminated by reasonable accommodation can an employee be barred from the workplace. (Q&A G.4)

In the third Q and A, the EEOC provides examples of accommodations that may eliminate a direct threat to an employee. Assuming such an accommodation does not create an undue hardship, the EEOC suggests that an employer consider enhanced protective gear, i.e. gowns, masks, gloves; erecting barriers or increasing space that provides the employee with a disability separation from co-workers or the public; the elimination of marginal functions (as distinguished from essential functions); temporary modification of work schedules; or moving the location of the employee’s work. The employer and employee should work together to identify an effective accommodation. The EEOC encourages creativity and flexibility when crafting possible accommodations. (Q&A G.5)

As the EEOC continues to advise on options for the workplace during this pandemic, we will continue to keep you informed.