Workforce management and HR leaders accommodating workers at risk for severe coronavirus-related illness can now refer to the Equal Employment Opportunity Commission’s updated guidance on COVID-19 and the Americans with Disabilities Act (ADA).
Three Points for Discussion
The EEOC advises employers to discuss the following points with any at-risk employee requesting an accommodation:
How the disability creates a limitation
Medical documentation is a good idea, as well as a doctors note for any disability that isn’t obvious.
How the requested accommodation will effectively address the limitation
Discuss with the employee whether another accommodation could address their issue.
How the accommodation will enable the employee to remain productive
Labor and employment attorney Barry Hartstein points out that the rules would be far stricter if an employer is thinking of keeping a high-risk employee out of the workplace.
The EEOC requires the following in these circumstances:
Application of the direct-thread standard
Under this standard, an employee is excluded from the worksite if they pose a direct threat to himself or herself or to others. Direct threat is defined in the EEOC guidance on pandemics and the ADA as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Individualized assessment based on reasonable medical judgment about the employee’s disability—not the disability in general—using the most current medical knowledge and the best available objective evidence
The EEOC expects employers to consider potential reasonable accommodations, even if an employee’s disability poses a direct threat. HR leaders and workforce management should prioritize discussing with the employee ways to return them to work while still performing essential job functions. Alternative accommodations include telework, leave, or reassignment.
Barring an employee from the workplace
This should be a last resort, according to Hartstein.
The U.S. Centers for Disease Control and Prevention (CDC), states that employees with conditions that put them at a higher risk for severe illness from the coronavirus include individuals who are immunocompromised as well as people with following conditions:
The following conditions are among those identified by the CDC as possible causes for a person to be immunocompromised:
If Employees Don’t Request an Accommodation
According to the EEOC guidance, the employer is not required by the ADA to discuss or provide accommodations if the employee does not request a reasonable accommodation.
However, an employer who has been put on notice of an employee’s medical condition, would be wise to discuss with the employee whether an accommodation would help them perform the essential functions of their position.
Such third parties as doctors, spouses, or friends may also requests for accommodation on behalf of the employee.
New York City labor and employment attorney Eve Klein says the law generally does not require employers to honor requests for accommodations made by employees who want to lower their risk of contracting COVID-19 and exposing a high-risk individual they live with or care for, “but many are attempting to do so when practicable.”
Training for managers on current CDC and local health department guidance is necessary, as far as Eve Klein is concerned, because they need a clear picture of the seriousness of a health pandemic and how big a risk exposure poses to employees who are immunocompromised or more-vulnerable. The training should also cover the confidentiality requirements for all medical information received from employees.
Considering and providing accommodations should involve discussion with employees and flexibility by employers whenever possible; and managers should be aware of the proper protocol for responding to an accommodation request, including having the employee’s contact person’s details on file.
Responsive Accommodation Process
HR leaders can designate a team or an individual in charge of processing requests from employees who do not wish to return to work.
Chai Feldblum, DC labor and employment attorney and former EEOC commissioner urges those processing requests to consider the following:
Some employees have legal rights under the ADA or paid-leave laws, while others don’t.
For employees without legal rights, employers should still have a process for giving them options for workplace arrangements that meets the employer’s legal and business needs.
Payroll Systems’ highly scalable HR and payroll solutions can help you process accommodation requests by at-risk employees. Contact us to learn more about our combination of software and human support for your business.
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This article provides general information and shouldn’t be construed as legal or HR advice. Since employment laws may change over time and can vary by location and industry, please consult a lawyer or HR expert for advice specific to your business. You can also contact Payroll Systems to inquire about our HR support services.