We have discussed (here and here) the problem of the reluctant employee. That is, a furloughed employee who resists the call to return to the workplace because of fear (or at least a perceived or claimed fear) of COVID exposure.
This post tackles the opposite problem: the reluctant employer. A furloughed employee wants to return to work. Work is available. But, the employer is reluctant to bring the employee back because an underlying health condition makes the employee at higher risk of severe illness if they contract COVID-19. The CDC has identified several such conditions, including chronic lung disease, severe asthma, serious heart conditions, people who are immunocompromised, severe obesity, diabetes, liver disease, and chronic kidney disease undergoing dialysis. The CDC also states that a person’s age alone (over 65) presents an elevated risk, even without underlying health conditions.
Does an employer have the right to refuse an employee entry into the workplace under these circumstances?
EEOC addressed this question recently in an updated its Guidance about complying with the ADA in light of COVID-19.
If the employee does not disclose the health condition, or does not request a reasonable accommodation for it, the ADA does not require the employer to do anything. For its part, the employer should not inquire about underlying medical conditions or make assumptions about the employee’s health based upon information from others. But, what if the employee discloses they have an underlying condition on the CDC list that makes them vulnerable? The employer may naturally be concerned about exposing the employee to the risk of COVID exposure (as well as any consequent legal liability to the employer). Despite these concerns, the employee may not be excluded from the workplace in these circumstances unless there is evidence the condition presents a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation.
Proving “direct threat” is not easy. It requires showing the employee has a disability that poses a “significant risk or substantial harm” to the employee’s own health. The fact that the employee has a condition on the CDC’s threat list is not enough in and of itself. The employer cannot exclude the employee because of a health condition that “generally” presents an elevated risk with COVID-19 exposure. According to the EEOC Guidance, the determination must be an individualized assessment, based upon a reasonable medical judgment about the employee’s disability in particular, using the most current medical knowledge and/or the best available objective evidence.
What if the employee’s condition really does present a direct threat if the employee contracts COVID-19? Before excluding the employee, the employer must first determine there is no way to provide a reasonable accommodation that would still permit the employee to perform the essential functions of the job. Reasonable accommodations might include additional enhanced protective gowns, masks, gloves or other extra gear; separating the employee from others by moving the work area or erecting barriers; or modifying work schedules. If there really is no reasonable accommodation that will allow the employee to return to the workplace safely, the employer must consider other options, such as telework, leave, or reassignment to a different job in a place where the employee has less contact with other employees.
In short, the EEOC Guidance makes clear it will be rare the circumstance in which a employer may refuse a COVID-19 vulnerable employee from returning to the workplace entirely. Whatever other legal liability might exist, compliance with the ADA means the employer should err on the side of letting the employee come back to work.