Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Apr 09, 2020

Q&A: Be careful about treating “high risk” employees differently

Q&ACOVID-19Harassment & DiscriminationLeave Laws 

Question: Can we exclude employees from the workplace if they’re at high risk for severe illness from COVID-19, such as older workers or workers with underlying medical conditions?

Answer: In general, no. If your reason for keeping employees away from work is based solely on their membership in a high-risk group based on their age or medical status, your actions likely violate the law. It’s understandable you want to protect employees from COVID-19 (coronavirus) out of a sense of compassion. However, you should base any such decisions on workers’ actual exposure or symptoms based on CDC guidance.

The CDC has a web page on people who need to take extra precautions to avoid contracting COVID-19. People who are at higher risk for serious illness are older adults (age 65 or older) and people of any age with serious underlying medical conditions such as asthma (moderate to severe), diabetes, and severe obesity. The CDC cautions that other populations such as pregnant people or individuals with disabilities may also be at higher risk depending on their individual medical situations.

The federal Age Discrimination in Employment Act (ADEA) prevents discrimination based upon age for employees who are age 40 or older. The Americans with Disabilities Act (ADA) prohibits discrimination based on disability. The federal Pregnancy Discrimination Act (PDA) defines pregnancy discrimination as a type of sex discrimination under Title VII of the Civil Rights Act of 1964. The protections apply to employees who are pregnant, might become pregnant, or have been pregnant. The federal Equal Employment Opportunity Commission (EEOC) recently posted a webinar with guidance on avoiding workplace discrimination in light of the current pandemic, and cautioned employers against taking employment actions based purely on status as a high-risk individual. The EEOC has also updated its technical assistance questions and answers, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, as of April 9, 2020. The updated guidance includes an example verifying that employers shouldn’t postpone a job offer merely because a worker is in a high-risk category. State laws may also prohibit such discrimination.

There are some situations where you may legitimately exclude employees from work, but you should apply your rules consistently regardless of age or medical history. However, be prepared for some employees who are in a high-risk category to tell you they’re not comfortable coming in to the workplace. If they fall within the high-risk groups identified by the CDC, their apprehension is understandable. If their physical presence in the workplace is essential, take every possible step to ensure their protection. Otherwise, consider alternatives such as telework or a leave of absence. For help with specific situations, please contact your Vigilant Law Group employment attorney.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.