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Friday, May 8, 2020

COVID-19 Update: Employees Vulnerable to COVID-19 Can’t be Excluded from Workplace Unless Their Condition Creates a “Direct Threat” to Their Health that Can’t be Accommodated

On May 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on reasonable accommodations for employees that have medical conditions that the Centers for Disease Control (“CDC”) says makes the employee more vulnerable to COVID-19 than the employee would be without the condition. EEOC guidance does not have the force of law, but it may be relied upon by courts in analyzing claims.

The May 5 guidance provides that if an “…employer knows that an employee has one of the…” CDC identified conditions that puts the employee at a “higher risk for severe illness” if they get COVID-19, then the employee cannot be automatically excluded from the workplace ‘…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.’ However, the employer can exclude the employee if he/she poses a “direct threat”—meaning a significant risk of harm— to his health that cannot be reasonably accommodated. The “direct threat” assessment must be individualized based on a reasonable medical judgment about this employee’s disability. The employer also should 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. 

Even if an employee’s disability poses a “direct threat” to his own health, the employer still cannot exclude the employee from the workplace if the employer can provide a reasonable accommodation (absent undue hardship).  The guidance provides a non-exclusive list of reasonable accommodations, such as protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees, erecting barriers that provide separation of the disabled employee from co-workers, elimination or substitution of particular “marginal” functions, and temporary modification of work schedules or work locations. The employer must engage in the interactive reasonable accommodation process.

Therefore, employers should not conclude that an employee who is deemed more vulnerable to COVID-19 (even for the purposes of emergency paid sick leave under the Families First Coronavirus Response Act) can be excluded from the workplace. Employers must carefully analyze each employee’s situation and possibly consult with legal counsel before making a decision to exclude a particular individual from the workplace.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert.


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