As employees return to the workplace following the COVID-19 pandemic, employers are trying to maneuver through the individual needs of its workers.
While many employees can return to work without concern or incident, there are some individuals who have pre-existing medical conditions or who have symptoms of the virus that make returning to the workplace particularly problematic.
The Equal Employment Opportunity Commission has provided guidance to employers on how best to address these unique circumstances.
Businesses are permitted to screen all employees to determine if a worker has symptoms of COVID-19, according to the EEOC. Those with symptoms, as identified by the Centers for Disease Control and Prevention and public health authorities, can be a direct threat to the workplace and therefore be removed.
The screening can include disability-related inquiries and medical exams if necessary including taking temperatures or asking questions about symptoms.
If employers choose to take these measures, they need to be consistent and not single out any specific individual.
Many employers are requiring returning employees to wear personal protective gear such as masks and engage in other infection control practices.
There may be some employees whose disability or religion requires a reasonable accommodation from these practices.
Employers should engage in the interactive process and provide a modification or alternatives, if feasible and does not pose an undue hardship.
Some employees with certain pre-existing medical conditions may be hesitant to return to work, especially those with high risk of serious illness to the COVID-19.
Employers should not assume that someone is high risk, but should communicate with all returning workers about the measures being taken to keep employees safe and to offer reporting resources for any employee who may need a reasonable accommodation.
It is the employee’s duty to report the need for a reasonable accommodation. Requests can be made either through a third-party, medical professional or employee and can be made verbally or in writing. Once made, the employer can require medical documentation.
If the employee fails to request an accommodation, the employer does not need to take action, according to the EEOC.
“If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA [Americans with Disabilities Act] does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at ‘higher risk for severe illness’ if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation,” according to the EEOC guidelines.
To demonstrate a direct threat, the employer must show that the individual has a disability that poses a “significant risk of substantial harm” to the employee’s own health.
To make this determination, the EEOC suggests analyzing the severity of the pandemic in a particular area and the employee’s own health and the employee’s job duties. Employers also can consider the likelihood that an individual will be exposed to the virus at the worksite and measures the employer is already taking to protect all workers, such as social distancing.
“An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”
Resolving these return-to-work issues is admittedly complicated and risky for employers seeking to re-open.
Employers who are processing requests for reasonable accommodations or who are concerned about direct threat can receive free advice from the Job Accommodation Network at askjan.org.