Corporate Services Inc.

06/23/2020 | News release | Archived content

EEOC: Accommodating At-Risk Workers

In new pandemic-specific guidance, the EEOC reiterates an employer's normal obligations for reasonable accommodations while imparting new measures they should take now.

'Direct threat' standard

First, employers need to understand the definition of a 'direct threat' - the standard employers must meet in order to take any adverse action (reassignment, change of job duties, etc.) against employees who are at higher risk for the coronavirus.

COVID-19 screenings. Firms can take temperatures or make coronavirus-related inquiries before allowing staff to enter the workplace 'because an individual with the virus will pose a direct threat to the health of others,' says the EEOC.

But the process must be consistent for every employee. Employers must screen at-risk employees (age 65+, diabetics, those with asthma, etc.) the same as all other staffers.

Since the Americans with Disabilities Act (ADA) protects employees with disabilities, employers may not exclude a high-risk employee from the workplace or take any action against them unless their disability poses a direct threat to their health or the health of others, says the EEOC.

Direct threat assessment. Employers will need to conduct an individual assessment of an employee's medical condition and their ability to perform their job, along with the severity of the pandemic in their geographical area.

Employers also need to assess if the threat can be eliminated by temporarily modifying a work schedule or reassigning them to a different job that allows remote work. Otherwise, that employee would not be considered a direct threat unless accommodating them poses undue hardship on the firm, says the EEOC.

Accommodation requests

If an at-risk employee requests an accommodation, the EEOC says a firm is allowed to discuss:

  • how the disability creates a limitation
  • how an accommodation will enable them to continue performing their essential job functions, and
  • whether another accommodation could solve the issue.

An employer can also request additional medical documentation if a particular accommodation is not reasonable. The EEOC recommends employers not only offer additional PPE (masks, gloves, etc.) and erect physical barriers, but be creative and flexible in offering accommodations.