On May 7, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidelines allowing employers to bar workers with underlying medical conditions from the workplace during the COVID-19 if, after a rigid “individualized assessment,” the employer concludes the employee’s condition poses a “direct threat” to his or her own health if they contract the virus. In other words, an employer can bar an employee from entering the workplace if, after an “individualized assessment,” the employer determines that contracting the virus places the employee “at higher risk for severe illness.”
It is worth noting that the Americans with Disability Act (“ADA”) precludes employers from barring workers from going back to work solely because they have an underlying medical condition that makes them more susceptible to becoming severely ill if they contract the virus. The EEOC cautioned that under the ADA an employer may only bar a worker from returning to the workplace after they have conducted a thorough individualized assessment to determine whether the worker’s medical condition “poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation.” The employer’s individual assessment must be “based on a reasonable medical judgment about his employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence.”
Even if an employer concludes a worker’s medical condition poses a direct threat to their own safety, the EEOC stated that the worker cannot be barred “unless there is no way to provide a reasonable accommodation,” absent an undue hardship on the employer. If no reasonable accommodation exists that adequately reduces the threat a worker’s condition poses to themselves at the workplace, then other accommodations, such as teleworking, leave, or reassignment should be considered.
The complete EEOC guidelines can be found by clicking on the link below:
https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
