The Equal Employment Opportunity Commission (EEOC) has issued new guidelines around COVID-19 for employers to follow. The revised guidelines explain how the Americans with Disabilities Act (ADA) applies in situations when an employer knows a returning employee has an underlying medical condition that puts them at higher risk of COVID-19, but the employee doesn't ask for an accommodation.
Even if an employee has a medical condition that the Centers for Disease Control has determined makes them more susceptible to becoming seriously ill from the coronavirus, an employer can't bar the employee from returning to work. The EEOC also said that the ADA doesn't require employers to take any action if an employee doesn't ask for an accommodation.
The EEOC said that if an employer is worried that a worker's health will be imperiled, but the employee did not ask for an accommodation, the employer is not permitted to exclude that employee from the workplace. There is an exception under the ADA, however: the worker can be kept from the workplace if the employee's disability "poses a 'direct threat' to his health that cannot be eliminated or reduced by reasonable accommodation." According to the ADA, “direct threat” means a significant risk of substantial harm to the employee or others, but the EEOC added that the ADA's "direct threat requirement is a high standard," so employers making that kind of claim are likely to have to demonstrate that such a decision was not discriminatory.
If you have been or expect to be called back to work, you have an underlying health condition such as a serious heart problem, diabetes or asthma, and you think your job puts you at high risk for COVID-19, you can ask for an accommodation that allows you to do your job while lowering your risk. Unless your employer can meet the ADA's “high standard” for establishing direct threat, they can't bar you from getting back to work, and it would be discriminatory for them to do so or to fire you for requesting an accommodation.
We explained many of the issues around returning to work in a blog post on April 25.
At Barrett & Farahany, we understand that the prospect of returning to work and the potential exposure to COVID-19 is both stressful and concerning for employees, and we are here to help in any way we can. If you have questions or believe that your employer has done something illegal, please reach out to us at 404-487-0903 so that one of our attorneys can talk through your situation with you and advise you about what you can do to best protect yourself and your job.