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Considerations For Returning Higher Risk Employees To The Workplace

on Friday, 22 May 2020 in Covid-19 Information Hub

Virtually all workplace reopening guidelines state in some fashion that employers need to protect their employees who are at higher-risk of severe illness if they become infected with COVID-19.  According to the Centers for Disease Control and Prevention (CDC), those at high-risk for severe illness from COVID-19 are: 

  • People 65 years and older
  • People who live in a nursing home or long-term care facility
  • People of all ages with underlying medical conditions, particularly if not well controlled, including:
    • People with chronic lung disease or moderate to severe asthma
    • People who have serious heart conditions
    • People who are immunocompromised
    • Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
    • People with severe obesity (body mass index [BMI] of 40 or higher)
    • People with diabetes
    • People with chronic kidney disease undergoing dialysis
    • People with liver disease

So how is an employer to know whether an employee has one or more of these underlying medical conditions, as most of them are not apparent?  Can the employer ask the employee?  And if an employer knows that an employee has an underlying medical condition, is it legal to require the employee to provide a release from his or her health care provider prior to allowing the employee to return to the workplace?  And how does an employer go about “protecting” these employees? So many questions.

First of all, it is inadvisable for an employer to ask an employee whether he or she has an underlying medical condition that places the employee at a higher risk of severe illness if infected by the virus.  The U.S. Equal Employment Opportunity Commission (EEOC) and similar state and local agencies will likely consider employees at higher-risk due to one of the above-listed underlying medical conditions as “disabled” for purposes of the Americans with Disabilities Act (ADA) and other disability discrimination laws.  Under the ADA, medical inquiries and examinations of employees are generally prohibited unless the employer has “business necessity.”  Arguably, an employer has a business necessity in mitigating the spread of COVID-19 so that it may implement appropriate workplace safeguards to do so.  However, the legally safer alternative to requiring employees to disclose such conditions is informing employees that they may self-identify any underlying medical condition that places them at higher risk, and if they do so the employer will work with them to provide appropriate safeguards.

Another issue employers will likely face as workers return is requests for reasonable accommodation.  In recent guidance, the EEOC explained that employees who need or want a reasonable accommodation due to their higher risk related to COVID-19 must so inform their employer either verbally or in writing.  Importantly, they do not need to use the words “reasonable accommodation”; instead, their employers’ reasonable accommodation obligations may be triggered if they simply request some type of job modification due to concerns over COVID-19 exposure.  If their need for an accommodation is not obvious, then their employers may require them to provide medical documentation or ask them questions to determine whether they have a disability that requires accommodation. 

If an employee requests an accommodation, the EEOC suggests the employer engage in an “interactive process” by asking questions about how the requested accommodation will help the employee safely and effectively perform the essential functions of the job and whether a different (e.g., less expensive or complicated) accommodation could effectively address the issue. The employer should be certain to document its interactive process with the employee.  The interactive process is important to identify whether an accommodation is necessary and what accommodations are available.  For example, merely having a fear of contracting COVID-19 is not enough by itself to require an accommodation.  The employee requesting the accommodation must have an underlying medical condition that puts them at higher risk.  So there may be instances in which the employer needs more information from the employee’s health care provider to determine if the person actually has an underlying condition that puts her or him at greater risk as well as what type of accommodation the employee needs. 

Accommodations that may abate a direct safety threat include working remotely; physical barriers in the workplace; personal protective equipment such as gowns, masks, and gloves; modified schedules; and relocating an employee’s work station to an isolated area within the workplace.  The EEOC encourages employers “to be creative and flexible” in response to employees’ reasonable accommodation requests and needs.

The EEOC’s guidance also addresses an employer’s pre-existing knowledge that an employee has an underlying medical condition that places the employee at higher risk if infected, but the employee has notrequested a reasonable accommodation.  In that situation, the guidance suggests the employer proceed cautiously before excluding the employee from the workplace.  The EEOC recommends that the employer conduct an individualized “direct threat” assessment and engage in the interactive process to determine whether a reasonable accommodation could reduce or eliminate that threat.  Under the ADA, “direct threat” is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  The fact that an employee has a higher-risk of severe illness (or even death) if infected does not establish the employee is a “direct threat”; rather, the employer must conduct an individualized assessment of that particular employee’s ability to safely perform the essential job functions, relying upon current medical knowledge and considering things such as 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.  The bottom line is that an employee may only be banned from the workplace if the employer has determined that the employee poses a significant risk of substantial harm to himself/herself (or others) that threat cannot be reduced or eliminated by a reasonable accommodation

So, there is a lot for employers to consider.  The takeaways below, however, should help simplify an effective approach to dealing with higher risk employees prior to them returning to the workplace: 

  1. Avoid making unnecessary medical inquiries and instead encourage employees at higher risk to self-identify.  Let them know you want to work with them to provide appropriate safeguards;
  2. Listen for reasonable accommodation requests (e.g., “I’m concerned about returning to work because _______”).  If those requests are made and are in connection with the employee’s higher risk due to a disability, then be open to granting reasonable accommodations;
  3. If you know an employee has an underlying medical condition that places the employee at higher risk, do not automatically prohibit that employee from returning to the work, or from returning without a health care provider’s release.  Instead, contact the employee and determine whether the individual’s return will constitute a “direct threat” (a very high standard) to him or her, or whether that threat can be abated by any reasonable accommodation;
  4. Consider accommodations and safeguards such as telework, erecting physical barriers in the workplace, providing personal protective equipment, modifying schedules, and offering workers at higher risk duties that minimize their contact with customers and other employees;
  5. Especially to protect your higher risk employees, be certain follow the guidelines issued by the CDC and OSHA to protect all employees, including the following:
    1. Ensure appropriate social distancing.  Reconfigure the locations of workstations if necessary, or erect physical barriers;
    2. Follow CDC recommended cleaning and disinfecting practices;
    3. Require all employees, customers, and visitors to wear a face mask or face covering to help prevent them from spreading the virus;
    4. Promote healthy hygiene practices, especially frequent handwashing;
    5. Close communal spaces, such as break rooms;
    6. Replace in-person meetings with video- or tele-conference calls;
    7. Limit any sharing of tools, equipment, or supplies;
    8. Cancel all non-essential travel; and
    9. Check employees daily for signs and symptoms (either by employee self-screening questionnaires or employer-conducted screening). 

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