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EEOC Reboots Virus Guidance for Employers With At-Risk Workers

May 7, 2020, 5:00 PM

The federal government’s workplace civil rights agency has made a second attempt to advise employers on how to handle employees with medical conditions that could cause a more severe case of Covid-19.

The new guidance the Equal Employment Opportunity Commission released Thursday made clear that an employer can’t bar an employee from the workplace solely because of an underlying medical condition. Instead, that action can be taken only after a series of steps are followed that consider ways to accommodate the employee, including by possibly altering their job responsibilities.

The new guidelines for employers were issued after the agency on Tuesday posted and then removed earlier guidance on the topic. It had said the earlier version was misinterpreted.

The Centers for Disease Control and Prevention has identified underlying medical conditions, such as chronic lung disease or serious heart conditions, that could create a higher risk of a person developing a severe illness from Covid-19, the disease caused by the novel coronavirus. That raised the question of how employers should respond when workers with one or more of those conditions request reasonable accommodations under federal disability law. The EEOC has been regularly updating its guidance for businesses and workers, to ease the process of navigating the complicated maze of employment law compliance while prioritizing workplace safety during the pandemic.

In the latest guidance, the EEOC said the Americans with Disabilities Act doesn’t permit employers to ban employees with an underlying condition from coming to work due to health concerns “unless the employee’s disability poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation.”

Assessing a ‘Direct Threat’

The “direct threat” standard is a high bar, the agency said, and can’t be reached solely based on an employee having a condition included on the CDC’s list. The employer must take into account an individualized assessment of the worker’s condition “based on a reasonable medical judgment about this employee’s disability—not the disability in general—using the most current medical knowledge and/or on the best available objective evidence.”

The decision should also take into account the duration of the risk; the nature and severity of potential harm; the likelihood of the person potentially being exposed to the coronavirus at work; any ways the employer can mitigate the exposure risk; and other environmental factors. Employers must consider telework options, leave, or a job reassignment as potential reasonable accommodations for the worker.

The agency said the employer can stop the employee from coming to work only if the worker’s circumstances meet that process for defining a “direct threat” to a worker’s health, and there isn’t a reasonable accommodation that wouldn’t present an undue hardship.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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