As governmental stay-at-home orders are being lifted and employers consider reopening their workplaces, new challenges arise that require careful consideration. The National Law Review has been publishing articles to help employers focus on the issues specific to their business, one of which we will highlight this month. We encourage you to monitor the Centers for Disease Control (CDC) and Department of Labor websites, along with state and local health departments, for the latest information on COVID-19 and preventive measures to slow the spread of the virus.
What is a “high risk” employee?
A frequent concern is how to manage employees considered high-risk as defined by the CDC or local agencies. Since COVID-19 is a new disease, information on risk factors is limited. Based on what we know now, those at high-risk for serious illness from COVID-19 are:
- People 65 years and older
- People of all ages with underlying medical conditions, particularly if not well controlled, including chronic lung disease, moderate to severe asthma, serious heart conditions, weakened immune systems, severe obesity, diabetes, chronic kidney disease, and liver disease.
Can employers ask an employee about COVID-19 risk factors?
Be cautious about asking employees without COVID-19 symptoms to disclose if they have a medical condition considered high risk. Employers covered by the Americans with Disabilities Act (ADA) must monitor guidance from the Equal Opportunity Commission (EEOC) as it navigates the situation. The ADA prohibits an employer from asking disability-related questions or requiring medical exams “except under limited circumstances,” one of which is a “direct threat” to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
In March, the EEOC issued updated guidance to address its application to COVID-19. The new information focuses on applying its pandemic standards to COVID-19 in a way consistent with the ADA and current CDC and local guidelines. As of that update, the COVID-19 pandemic meets the direct threat standard. As long as the pandemic continues to be a direct threat, employers are allowed, but not required, to ask employees to disclose if they have a condition identified as high risk. If you choose to ask, be prepared to provide reasonable accommodations to employees that disclose a high-risk medical condition and have concern about returning to the office. As the spread of COVID-19 starts to decline, the EEOC and other agencies may conclude that a direct threat no longer exists, so be vigilant in monitoring guidance.
Are employers required to allow high-risk employees to work at home?
Whether you are obligated to allow high-risk workers to work at home as a reasonable accommodation may depend on your state’s stay-at-home orders. The EEOC considers telework an “effective infection-control strategy that is also familiar to ADA employers as a reasonable accommodation.” Employees that you request to stay at home may claim that they were denied equal terms and conditions of employment due to being in a high-risk group, but such claims will likely be dismissed as being without merit, provided your reporting is in line with CDC and local government recommendations. You may choose to make working on-site voluntary for all employees who are able to keep working at home, if practical.
Must employers accommodate requests from older workers to stay at home?
If an employee over age 65 with no underlying medical condition requests to continue teleworking, employers are not required to accommodate the request. But if working from home is practical, granting the request until the pandemic abates may be good for morale, employee safety, and reduced risk of transmission. If the employee cannot telework but is afraid to come to work, determine whether the employee qualifies for paid or unpaid leave under your company’s policies or federal and state leave laws. The Families First Coronavirus Response Act, a temporary Department of Labor rule that provides tax credits for the cost of providing paid leave related to COVID-19, may apply.
Navigating employment law in the time of COVID-19 can seem daunting, especially as requirements change in response to new information about the pandemic. Keep your employment attorney on speed dial to make sure you stay up to date. As always, we are happy to help.