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EEOC Scraps Employer Covid-19 Guidance for At-Risk Workers

May 6, 2020, 4:15 PM

The federal agency that enforces civil rights law appears to be rethinking how to advise employers dealing with workers with medical conditions that could put them at a heightened risk on the job during the coronavirus pandemic.

The Equal Employment Opportunity Commission removed guidance from its website Tuesday evening, hours after posting it earlier in the day. The agency in the scrapped section said businesses can potentially prohibit employees with an underlying medical condition from working during the coronavirus pandemic, but only if that condition poses a “direct threat” to the workers’ health after an individual assessment.

“The information was subsequently misinterpreted in press reports and social media,” the agency said in an update on its website. “We have removed it and are revising the information to ensure that it is clear.”

The agency did not elaborate on what part of the guidance had been misinterpreted. It also didn’t respond to multiple requests to provide additional information.

Employers are barred under the Americans with Disabilities Act from asking about a worker’s disability, which can include medical conditions, unless the inquiry is “job-related and consistent with business necessity.”

The EEOC said in the now-removed guidance that an employer can ask about an employee’s known medical conditions if “an employer has a reasonable belief, based on objective evidence, that due to a known medical condition an employee will pose a direct threat to himself in the workplace.” An underlying medical condition can cause a person to contract a more severe case of Covid-19, the disease caused by the novel coronavirus.

The agency’s original guidance from Tuesday said that “only a determination of direct threat to self (i.e., to his own health) justifies exclusion from the workplace of an employee because he has a preexisting, underlying condition that places him at higher risk for severe illness from COVID-19 if he contracts it. And reaching the conclusion of direct threat to self requires an individualized assessment.”

The agency did not remove some of the other information it posted Tuesday about workers requesting a reasonable accommodation because of an underlying medical condition. It said a worker requesting a reasonable accommodation under the Americans with Disabilities Act must tell an employer that he or she “needs a change for a reason related to a medical condition (here, the underlying condition).”

Employers can also mitigate the direct threat an underlying condition could pose to a worker’s health by providing “additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace,” the agency said.

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

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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