Recently, the United States Equal Employment Opportunity Commission (EEOC) provided employers guidance as to how best manage vulnerable employees and how these employees should be accommodated in the wake of COVID-19. The EEOC suggests that as part of every employers’ “re-opening” plans, employers should take great care to implement social distancing and other good safety measures in their workplace. Greater protections may need to be implemented for immunocompromised and other vulnerable employees (those suffering from respiratory, heart diseases, diabetes, etc.) that may be at disproportionate risk of infection and serious illness if exposed to COVID-19.
In its guidance, the EEOC has stressed the need for an employee to inform his or her employer of the need for an accommodation if health risks are at play. Furthermore, employees should be able to provide medical documentation and answer questions from employers regarding the need for an accommodation. As in any instance of disability accommodation under the Americans with Disabilities Act (ADA), the employer must ultimately determine whether a vulnerable employee’s medical condition can be reasonably accommodated.
Furthermore, in its guidance the EEOC indicated that it is impermissible for an employer to prohibit an employee from working, even where the employer knows the employee is at higher risk for severe illness if exposed to COVID-19. However, it will be permissible for employers to prohibit an employee from entering a workplace where the employee presents with COVID-19 symptoms and this poses a “direct threat” to coworkers. The decision of whether a “direct threat” exists requires a highly individualized, objective assessment where employers will have to consider the duration of risk, the nature and severity of potential harm, the likelihood and imminence of such harm, and whether the employee “notwithstanding the risk [can] perform the essential functions of the job without threatening his/her health, with or without accommodation.” An employee’s pre-existing medical condition will not constitute a direct threat if the threat can be reduced or eliminated through reasonable accommodation. Such accommodations may include, but are not limited, to relocating or reassigning an employee, allowing an employee leave time or the option to work remotely.