The EEOC clarifies its position on COVID-vulnerable employees.
Yesterday, the Equal Employment Opportunity Commission reissued guidance on employers’ responsibilities with respect to employees who have medical conditions that make them vulnerable to COVID-19. (Scroll to Question G.4.)
The word on the street was that the EEOC’s original guidance, issued on Tuesday, was saying it was fine and dandy for an employer to just send those “vulnerable” employees right home.
On Wednesday, the EEOC withdrew the guidance, saying it had been misunderstood by too many people. Yesterday the agency issued its clarified version.
The new version says exactly what I would have expected the EEOC to say, but because of all of the conflicting news reports, it might be worthwhile to go over it, step by step.
First, the guidance pertains to employees who have medical conditions that might cause them to be especially susceptible in the event of a COVID-19 exposure, or that might put them at much higher medical risk than the general population if they come down with the virus.
Many times, these underlying medical conditions will be considered “disabilities” within the meaning of the Americans with Disabilities Act. For example, employees with diabetes, or who are immunocompromised, are considered vulnerable.
So, let’s say the employer is bringing everybody back to work, including Marvin, who is immunocompromised. And the employer is concerned that Marvin may be in danger if he comes back to work and is exposed to coronavirus. Here are the rules:
Rule No. 1: If Marvin doesn’t request reasonable accommodation, then the employer is not required to accommodate. (That’s not to say that the employer can’t accommodate — only that it isn’t required to accommodate.)
Rule No. 2: Even if the employer is concerned about Marvin’s safety, it can’t “exclude the employee – or take any other adverse action” on that basis. The only way the employer can do this is if allowing Marvin back into the workplace would create a “direct threat” to Marvin’s health or safety. (Direct threat can also apply when an employee’s condition creates a “direct threat” to the health and safety of others.)
Rule No. 3: The “direct threat” standard is a tough one to meet. The employer cannot base it only on the fact that Marvin is “immunocompromised.” Instead, the employer would have to make an “individualized assessment,” taking into account Marvin’s condition as it applies to Marvin and Marvin’s work environment.
Rule No. 4: For an employer invoking “direct threat,” it isn’t enough just to show an elevated risk of harm. Instead, the employer has to show “a significant risk of substantial harm.” (Emphasis is mine.) In making that determination, the employer has to consider the duration of the risk, “the nature and severity of the potential harm,” the likelihood of harm, and the imminence of the harm — as applied to Marvin, given Marvin’s particular condition and the effects on Marvin, and the environment in which Marvin works. In the context of COVID-19, the employer would also be expected to consider the risk of contracting COVID-19 in the geographical area of the worksite — for example, an employer in New York City might be able to take more aggressive steps to protect Marvin (whether he wants it or not) than an employer in Wyoming. The employer should also consider the effect of the measures that it was already taking with respect to all employees — for example, social distancing requirements, temperature monitoring, or requiring use of masks in common areas.
So, OK — let’s say Marvin’s employer jumps through all these hoops and still thinks that Marvin is at “significant risk of substantial harm” if he comes to work onsite. We’re good, right?
Wrong. There is one more hoop.
Rule No. 5: As a final step before putting Marvin out of work, the employer must consider whether there are reasonable accommodations that would reduce the risk below a “direct threat” level. For example, if Marvin has an office, can he work with his door closed, and can he and his co-workers be required to wear masks when they leave their offices? If he doesn’t have an office, can his work station be moved to a more remote location at the worksite? Can he interact with his co-workers by email, instant messaging, or phone? And, if none of those options will work, can he do his job remotely? If not, can he transfer to a different job? As with all reasonable accommodations, the employer is required to engage in the “interactive process” with Marvin, which means both parties should “brainstorm” about accommodations that may be effective.
The EEOC concludes,
“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.”
This is classic “direct threat” guidance, very consistent with the position that the EEOC has always taken. So don’t be too quick to send those “vulnerable” employees home unless they ask you to send them home.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.