On May 5, 2020 the EEOC issued more detailed guidance on returning employees to work who have underlying medical conditions that the CDC says may put them at higher risk for severe illness from COVID-19.

The employee or their doctor must let the employer know that they need an accommodation related to the underlying condition, they can request the accommodation orally or in writing. They do not need to use the words, “reasonable accommodation””. The employer may ask questions or ask for medical documentation to validate the request. Then a discussion should be had with the employee to determine a reasonable accommodation absent undue hardship.

If an employer knows that an employee has an underlying condition that may put them at risk of severe illness should they contract COVID-19, but the employee has not asked for an accommodation, the ADA does not mandate the employer take any action.

The EEOC’s position is that the employer should not initiate any action absent the employee making a request for an accommodation, in other words, the employer is not to substitute their judgement for that of the employee.

The EEOC guidance says that “direct threat” to the employees own health is a “high standard” and requires the employer to show that the employee has a disability that poses a “significant risk of substantial harm” to his/her own health. I t cannot be based on the CDC’s list of conditions; the determination must be based on an individualized assessment based on reasonable medical judgment.

Even if the employer makes that assessment, you cannot refuse to return he employee to work unless there is no other accommodation.

The best course of action is to not substitute your judgement for that of the employee and his/her medical provider.

If you have any questions regarding returning employees with disabilities to work, please contact the Kitch Labor & Employment team.

Any information included here or through our web site is presented solely for general informational purposes and is not in any way intended as legal advice, is not a substitute for getting actual legal advice from an attorney, and should not be acted upon as legal advice without first seeking qualified professional counsel specific to your needs and situation. Additionally, by providing this general information and the information on our web site, no attorney client relationship is created.

EEOC Issues More Clarification On Return To Work Issues

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