Reopening Challenges (CONT’D FROM PAGE 37)
Examples Of Accommodations: The EEOC also provided some examples of accommo- dations that,may eliminate or sufficiently reduce a direct threat to an employee who is particularly vulnerable to COVID-19. Such accommodations could include, among other things, additional or enhanced protective gear be- yond what the employer may generally provide, additional or enhanced protective measures, temporary modification of work schedules to decrease interpersonal contact and, physically relocating the employee to another area of the workplace to allow for greater social distancing. What It Could Mean For Businesses The unique factor about this new guidance is that the EEOC has specifically indicated that people who are con- sidered “higher risk” — for example, even just based on their age— may be considered to have disabilities under the ADA and would potentially have to be accommodated. As businesses inch towards reopening, they will almost certainly encounter higher-risk employees who are reluc- tant to return to work or request some kind of accommo- dation. The EEOC makes it clear that employers should be prepared to address any potential accommodation re- quests for higher-risk employees and be creative in devel- oping and implementing alternative work arrangements. Reach Joel Greenwald at jg@greenwaldllp.com or (845) 589-9300.
in the interactive process, including asking questions or seeking medical documentation to assess whether the employee has a disability under the ADA and if a reason- able accommodation could be made, absent hardship. Q: Can an employer bar higher-risk employees from re- turning to the workplace? A: If an employer knows that an employee is at higher risk for severe illness due to COVID-19 but the employee has not requested an accommodation, even if the company is worried that such employee’s health may be compromised upon returning to the workplace, generally the ADA does not allow the employer to exclude such an employee – or take any other adverse action. The only rare exception is if the employee’s condition poses a “direct threat” to his/her health that cannot be eliminated or reduced by reasonable accommodation. Employers should be very cautious in using this exception, as it requires a thorough threat analysis, including: an indi- vidualized assessment based on relevant factors such as the severity of the potential harm to the employee; evalu- ating the chances that such harm will occur; gauging the likelihood that a person will be exposed to COVID-19 in the workplace; and, determining whether the threat can be reduced or eliminated through a reasonable accommo- dation.
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