The U.S. Equal Employment Opportunity Commission (EEOC) recently clarified in its COVID-19 FAQs what to do if an employee with a disability has one of the underlying medical conditions identified by the Centers for Disease Control and Prevention (CDC) that puts them at higher risk of severe illness from COVID-19 (coronavirus). The FAQs address common questions arising under the Americans with Disabilities Act (ADA) in light of the pandemic.
If the employee requests a disability accommodation under the ADA (such as asking to continue to work from home to avoid exposure to the virus), you should follow the normal process of evaluating whether you can do so without causing an undue hardship to the company or a direct threat to health and safety. There are no “magic words” required to trigger your duty as an employer to accommodate under the ADA. The employee or a third party, such as a doctor, merely has to let you know that a modification or adjustment to the job or workplace is needed. This notice may be verbal or written. You then have a duty to engage in the interactive process and determine if an effective reasonable accommodation is available. You may request medical documentation, including verification of the disability and specific recommendations for accommodation.
If an employee with a serious underlying medical condition doesn’t request an accommodation but you’re concerned about their safety if they return to work, your options are limited. Employees cannot be automatically excluded from the workplace simply because CDC guidance suggests that they may be at higher risk of severe illness if they get COVID-19. If you think it’s risky for them to come to work, you may conduct an individualized direct threat analysis and evaluate whether the threat to safety can be reduced or eliminated with a reasonable accommodation. Your direct threat analysis must rely on reasonable medical judgment about an employee’s particular disability and their actual working conditions – not speculation or fear. The newly published FAQs provide examples for accommodation that may reduce or eliminate the threat of contracting COVID-19, including protective gowns, masks, gloves, or other gear beyond what the company normally provides; a barrier that provides separation between the individual with a disability and others; eliminating or substituting marginal, non-essential functions of the position; and temporarily modifying work schedules.
Tips For Employers: Train your managers and supervisors to contact Human Resources immediately upon receiving notice of the need for accommodation and keep medical information strictly confidential. Document the entire interactive process, including the specific grant of accommodation and duration. The Job Accommodation Network is an excellent resource for assistance in helping to identify possible accommodations, as well as EEOC resources. Your Vigilant Law Group employment attorney is also available to walk you through the process. For general guidance on the requirements of the ADA, see our Legal Guide, At a Glance: Americans with Disabilities Act (ADA).