One Size Doesn’t Fit All: New EEOC Guidance Cautions Employers to Take an Individualized Approach in Returning ‘At-Risk’ Employees to Work in the Wake of COVID-19
COVID Back to Work

As the country begins a phased reopening of businesses, federal, state, and local agencies continue to issue updated information about returning to work during the COVID-19 pandemic. On May 5 and May 7, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated an FAQ list with new guidance reminding employers about the individualized assessment they must make under the Americans with Disabilities Act (“ADA”) when an employee’s disability may pose a direct threat to the employee’s health as they return to the post-COVID-19 workplace. (Our discussions of the prior installments of the EEOC’s guidance for employers concerning their continuing obligations under and ADA and Title VII to the Civil Rights Act of 1964 (“Title VII”) can be accessed here and here.)

As we have previously discussed, it is critical for employers to implement adequate policies and protocols to keep employees safe in the workplace both for the employees’ welfare and to reduce employers’ potential exposure to liability as employees return to work.  In addition to reaffirming the general importance of return to work policies, the EEOC’s guidance reminds employers that such policies may require modifications or exceptions for certain employees requiring reasonable accommodations. Employers should refamiliarize themselves with their obligations to engage in the interactive process when an employee requests a reasonable accommodation. Requests for accommodation typically arise under the ADA (based on a disability) or under Title VII (based on a religious belief or practice).

The EEOC’s guidance references infection control protocols and policies governing employee use of personal protective equipment (“PPE”) as examples of workplace rules that may require modifications or exceptions.  For instance, an employee with a skin condition or severe allergy may request non-latex gloves, while a wheelchair-bound employee may require alternative protective clothing (such as a gown). Further, an employee may require modifications to PPE to accommodate religious garb.

If an employee requests an accommodation, the employer should discuss the request with the employee and provide the modification if it is feasible. If the requested accommodation is not practical, the employer should work with the employee to find a mutually satisfactory alternative. Of course, an employer is not required to provide the requested accommodation if it would impose an “undue hardship” on the employer’s business, which generally means “significant difficulty or expense.” Importantly, the EEOC also recognizes that some accommodations that would not normally constitute undue hardship to the employer may now be characterized as such based on the unique and unprecedented COVID-19 situation. For more guidance on how undue hardship considerations have changed during the pandemic please see our recent blog post here.

But what about employees who are known to be at high risk – can an employer proactively take action to protect them?

Read the full alert here.

Posted in COVID-19

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