News & Insights

Interplay Of The Ada And Returning High Risk Employees To Work During Covid 19

The Equal Employment Opportunity Commission (“EEOC”) has clarified a question that has been playing on the minds of employees and employers alike: during the COVID-19 pandemic, how does the ADA apply to workers who do not want to return to the workplace because they are “high risk?”  If an employee, who has a medical condition identified by the Center for Disease Control (“CDC”) that puts him or her at greater risk of severe illness from COVID-19 infection, requests a reasonable accommodation, the employer should provide the reasonable accommodation. If the employee does not request a reasonable accommodation, the ADA does not require that the employer take action.

The ADA does not allow employers to take any adverse action against an employee solely because the employee has a disability that the CDC identifies as potentially placing them at “higher risk” for severe illness if they contract COVID-19. Adverse actions, such as excluding the employee from the workplace or terminating the employee, are not allowed unless the employee’s disability poses a “direct threat” to their health that cannot be eliminated or reduced by reasonable accommodation.

The “direct threat” requirement is a high standard. The employee’s disability must pose a significant risk of substantial harm to his or her own health under 29 C.F.R. § 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list. Rather, the determination must be an individualized assessment based on a reasonable medical judgment about the employee’s disability using the most current medical knowledge and best available objective evidence.

The ADA requires an employer to consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in the particular area, the employee’s own health, and the employee’s job duties. 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 or her own health, the employer still cannot exclude the employee from the workplace, or take any adverse action, unless there is no way to provide a reasonable accommodation. If an employee’s disability puts them at “higher risk of severe infection,” employers should consult with a labor and employment law attorney to determine the best course of action to mitigate risk.