As you know, the Equal Employment Opportunity Commission (EEOC) has been publishing guidance throughout the pandemic to assist employers as they navigate the myriad of novel issues.

This week, the EEOC updated its guidance for employers returning employees to work, especially to for those returning to physical workplaces (as opposed to teleworking). It is worthwhile to review the following three FAQs and the EEOC’s guidance:

G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that the CDC says may put her at higher risk for severe illness from COVID-19?

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?

G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?

You will recall the CDC recently expanded its list of medical conditions that may put a person at a higher risk. We discussed that in a recent newsletter.

We won’t bother to simply recite the guidance as you can click on the link and read it. But it is worthwhile to highlight a few things as we sometimes get so immersed in “COVID-19,” we forget what we used to know. Remember, the Americans with Disabilities Act not only protects qualified individuals with a disability, the ADA also protects qualified individuals who have a record of a disability and qualified individuals regarded as having a disability. That is important to remember. For some employers, the natural instinct will be to “over protect” an employee because of something you think you know about that employee’s health status. But that is not your role as an employer. It is of course important to be sure your employees have accurate and timely information so they can make informed decisions about their own health needs. This information will include things such as current CDC information about symptoms and conditions which put people at a higher risk. It will include information about the safeguards your business is (or is not) putting into place. But at that point, the employee, perhaps in consultation with their health care provider, will determine whether they need to request an accommodation. (Remember, you don’t impose upon an employee accommodations based upon assumptions.) The guidance will help you understand how to work through those accommodation requests in these days of COVID-19.

For an employer to take unilateral action – to act without the input or consent of the employee, the employer must prove there is a “direct threat” which is a high bar indeed. Employers would be wise to seek legal counsel before relying upon a conclusion of a “direct threat.”

By Kristen L. Brightmire, kbrightmire@dsda.com