On May 7, the EEOC posted new guidance about how to handle return to work for an employee known to be in a COVID-19 “high risk” category. 

First, if the employee does not request a reasonable accommodation, then the ADA does not mandate that an employer take any action.

Second, if an employer knows that an employee falls into a “high risk” category, the employer may not exclude the employee from the workplace solely because the employee falls into a high risk category. Rather, such action is not allowed unless the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by a reasonable accommodation.

To determine whether there is a “direct threat” an employer must make an individualized assessment of the employee’s disability, considering the following factors:

• Duration of the risk.
• Nature and severity of the potential harm.
• Likelihood that the potential harm will occur.
• Imminence of the potential harm.
• Severity of the pandemic in a particular area.
• The employee’s own health (for example, is the employee’s disability well-controlled).
• The employee’s particular job duties.
• Likelihood that an individual will be exposed to the virus at the worksite.
• Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing.

Third, even if the employee’s disability poses a direct threat to his or her health, an employer cannot exclude him or her from the workplace unless there is no way to provide a reasonable accommodation absent undue hardship. Employers must consider accommodations that would eliminate or reduce the risk and engage in the interactive process with the employee. If no workplace accommodations would suffice, employers must consider telework, leave, or reassignment before choosing to exclude the employee from the workplace. 

For more information, please contact me or your regular Parker Poe contact. You can also find the firm's other COVID-19 alerts here.