Recalled Workers Don’t Want to Return Because of Health Risks or Child Care – Now What?

By Fiona W. Ong - Shawe Rosenthal LLP

May 8, 2020

As businesses slowly begin to reopen, workers are being recalled to the workplace. Some of them are expressing reluctance to return due to increased health risks from COVID-19 based on underlying medical conditions or age. Others are struggling with child care issues as schools remain closed for the remainder of the academic year and summer care programs are canceled. Some employers have asked what are their obligations to such workers under the law? Can they terminate them, or do they have to accommodate them?

If there is a documented medical reason that places the employee at greater risk of COVID-19, the employer must engage in the reasonable accommodations interactive process. In the most recent iteration of its “What You Should Know” guidance on COVID, the EEOC included a return to work section with the following Q&As:

G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? (5/5/20)

An employee – or a third party, such as an employee’s doctor – must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition).  Individuals may request accommodation in conversation or in writing.  While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.

The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need.  After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation?

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, 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.  Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard.  As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). 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 – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to 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.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties.  A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).  The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.  This can involve an interactive process with the employee.  If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).  An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.

The EEOC has been clear that age alone is not a basis for reasonable accommodation. This is from a webinar that they did:

[Do] the EEO laws require an employer to grant a request to telework from an employee who is 65 years old or older because the CDC says older people are more likely to experience severe symptoms if they get COVID-19? The answer … is no. The Age Discrimination in Employment Act does not itself have an accommodation provision like the Americans with Disabilities Act. However, if an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers differently based on their age.

(Emphasis added). (On the flip side, employers should not refuse to bring back older workers because of a fear that there are greater risks to their health. That would most certainly constitute discrimination based on age, however well-meaning. )

As for child care, while those challenges are not in and of themselves protected, there is a possible argument that, because such responsibilities typically fall disproportionately on females, a sex-based discrimination claim may exist where employees are subject to adverse action (like termination or ineligibility for future recall) based on such responsibilities. Also, in some jurisdictions, family status is expressly protected from discrimination. Again, the prohibitions against sex discrimination or family status discrimination do not incorporate a reasonable accommodations requirement, but the dividing line between refusing to provide an accommodation and taking adverse action based on these characteristics may be rather blurred under the circumstances.

Thus, in this climate, employers should be careful about saying an employee will be terminated or will not receive another offer to return to work if they do not wish to return at this time because of age, an underlying condition, or legitimate child care reasons. People are truly concerned about their safety or have logistical challenges that may prevent their working, and all the federal and state agencies are encouraging employers to be flexible.  If people have genuine concerns about returning to work at this point, but may be willing to return in the future as things settle down and improve, and if the employer has openings further down the line, what would be the basis for saying that they will not get another offer or would not be rehired? At that point, the employer may be engaging in disparate impact discrimination based on age, sex or family status.