From the start we’ve been discussing the idea that the response to COVID-19 is an evolving one. This remains true. In that context, the government response has been largely to administer new laws and the applicability of existing laws through “Frequently Asked Questions” (“FAQ”) or via guidance.
Guidance does not have the same authority as regulation or rules: Guidance is supplemental material published by an agency that helps clarify applicability, but it does not go through the same processes and can be rescinded or changed at anytime, unlike rules or regulations.
In March, The Centers for Disease Control and Prevention (CDC) directed employees who become ill with symptoms of COVID-19 to leave immediately. The current EEOC Guidance makes it clear that the ADA does not interfere with employers following these directions.
In the context of this pandemic, the EEOC Guidance allows employers to make disability-related inquiries or require a medical examination of a current employee who will physically enter the workplace, when the employer reasonably believes that an employee’s medical condition poses a “direct threat,” defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
The EEOC suggests that an employee with COVID-19 poses a “direct threat” and may be ordered to go home.
However, the agency also cautions against subjective preconceptions or irrational fears and asks employers to undertake an objective and factual assessment of any potential direct threat in the workplace. There are four factors to consider:
the duration of the risk;
the nature and severity of the potential harm;
the likelihood that potential harm will occur; and
the imminence of the potential harm The CDC and state/local health authorities have acknowledged the community spread of COVID-19.
As a result, employers can ask COVID-19 related questions of applicants and employees to assess the presence of the threat in the workplace.
On May 5, the Equal Employment Opportunity Commission (EEOC) issued additional guidance to their existing FAQ page in section “G” – specifically G.3., G.4., and G.5. “Return to Work,” of which a COVID-related relaxed interpretation of “direct threat” under the Americans with Disabilities Act (ADA) was one.
A few days later, it was reissued to more closely align with that of previous guidance. Basically, if upon return to work an employer knows that an employee has a higher risk for severe illness, but the employee has not requested an accommodation then the employer is not mandated to take action.
From the guidance (G.4.) :
If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA 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.
Employers need more than just the likelihood of jeopardized health to exclude an employee (or make an adverse employment decision) to demonstrate a "direct threat."
The updated technical assistance for COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws can be found here.
You’ll note the revision dates on the questions: G.3. and G.5. were both updated May 5, G.4 is dated May 7.
Noteworthy is are the other employment considerations under EEO laws in the world of COVID, specifically around the ongoing anti-discrimination/harassment/retaliation obligations of employers and treatment of medical questions.
Much of the guidance contained here is subject to change, and is specific to the current pandemic; it may not and likely wouldn’t be applicable outside of this pandemic. Employers would be well advised to continue paying attention to this information.
In other words, the workplace response to COVID-19 remains evolving.