EEOC’ Guidance Regarding ADA Reasonable Accommodations for Employees Returning to Work
As states have started reopening, the EEOC has updated its guidance regarding disability-related issues that may arise as employees return to work. The most recent updates were issued on May 5, 2020, to address issues relating to returning employees who have medical conditions that place them at higher risk for severe illness from COVID-19.
For employees who have an underlying medical condition that put them at greater risk from COVID-19, if the employee desires a reasonable accommodation, the employee or the employee’s representative (such as the employee’s doctor) must let the employer know that an accommodation is needed. The employer may ask questions and/or require the employee to submit supporting medical documentation to support the request, as typically occurs during the ADA interactive process. Based on the information provided, the employer must determine whether the individual has a disability that requires accommodation and, if so, whether reasonable accommodation can be provided without imposing an undue hardship.
If an employee does not request a reasonable accommodation, the employer is not required to provide one. Employers also are prohibited from excluding employees from returning to work simply because the employee has a condition that might place him or her at higher risk from COVID-19. Rather, to justify excluding an employee from returning to work, or taking other adverse action, the employer must be able to establish that the employee has a disability that poses a “direct threat” to the employee’s health, based on an individualized assessment. In conducting such assessment, the employer should consider medical information about the particular employee’s disability, not the disability in general, as well as factors such as the severity of the pandemic in a particular area and the employee’s particular job duties.
Even if the employer determines that an employee’s disability poses a direct threat to the employee’s health, the employer cannot exclude the employee from the workplace or take other adverse action unless there is no reasonable accommodation that would eliminate or reduce the risk. Such accommodations could include providing additional or enhanced protective gear, allowing the employee to telework or work in an area that allows more social distancing, reassigning the employee to a different job, and/or allowing the employee to take leave.
The EEOC’s updated guidance on this ADA issue, as well as resources on compliance with other EEO laws, is available here.
The EEOC also has established a webpage where it has consolidated relevant guidelines and other information regarding compliance with federal EEO law during the COVID-19 crisis.
The webpage is available here.
For more information about the ADA or other discrimination issues related to COVID-19, or about any of the new developments in employment-related laws as a result of the COVID-19 crisis, please refer to the HGRS LLP Coronavirus (COVID-19) Resource Center, at www.hgrslaw.com, or contact our firm at (404) 442-8776.