Today, the EEOC announced and posted revisions to its technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which was issued earlier and designed to assist employers by addressing questions related to the ADA and the Rehabilitation Act arising out of the COVID-19 pandemic. The recently added questions and answers at G.3, G.4, and G.5 provide information for employers on accommodating employees during the pandemic that have underlying medical conditions.
For example, the answer to G.4 was revised to clarify that under the ADA an employer cannot exclude or take any adverse action against an employee, with a CDC-listed underlying medical condition, from the workplace for fear they may jeopardize their own health by returning to work solely because they might pose a “higher risk of severe illness” if they got COVID-19. Instead, to address this issue, the EEOC recommends that employers perform a comprehensive “direct threat” analysis, which is a high standard and is an individualized assessment based on relevant factors to determine whether the employee’s disability poses a “significant risk of substantial harm” to his/her own health that cannot be reduced or eliminated under a reasonable accommodation. But, if the employee never requested a reasonable accommodation under the ADA, the employer is not required to take any action. The answer also describes in greater detail the steps that employers should follow when conducting the “direct threat” analysis under the ADA to determine how an employee with a disability can return to the workplace.