As we blogged about here, the EEOC issued a revised version of its publication What you Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Among the several issues addressed in the EEOC's latest update, there are new rules to address managing reasonable accommodation requests from those returning to the worksite and from those wanting to continue to work from home.

Reasonable Accommodations Under the ADA For Individuals with "Higher Risk of Severe Illness"

The EEOC's guidance on reasonable accommodations was updated on May 5, 2020, and supplemented on May 7, 2020, to specifically address concerns involving individuals with certain medical conditions at a "higher risk of severe illness."

The EEOC looks to the CDC's definition for individuals with medical conditions having a "higher risk for severe illness." Such people include those with medical conditions that are 65 years and older and people of all ages with underlying medical conditions such as chronic lung disease or moderate to severe asthma, serious heart conditions, immunocompromised individuals, obesity, diabetes, kidney disease, and liver disease.

Assuming an employee with a medical condition having a "higher risk of severe illness" makes an accommodation request, an employer's obligation to accommodate and engage in the interactive process are required per the EEOC guidance. The request may come from the employee or the employee's physician. After receiving a request, an employer must engage in the interactive process with the employee, The EEOC's guidance on specific circumstances continues to evolve.

For example, if a job can be performed at only the workplace, the EEOC has recommended some accommodations on a temporary basis without causing an undue hardship, e.g., a "low cost" physical alterations of the workplace (one-way aisles, using Plexiglas barriers) or temporary job restrictions on marginal duties, temporary transfers, or modified work schedules.

Employers are also encouraged to be flexible in terms of requesting medical documentation and engaging in the interactive process. This could include providing accommodations on a temporary basis and even placing an "end date" on the accommodation. With respect to medical documentation, the EEOC has underscored, "for employers seeking documentation from a health care provider to support the employee's request, they should remember that because of the health crisis many doctors may have difficulty responding quickly. There may be other ways to verify the existence of a disability. For example, a health insurance record or a prescription may document the existence of the disability."

In the event an employer is considering keeping an employee out of the workplace because the employee has a "higher risk for severe illness," the rules are far stricter. The EEOC requires: (1) application of the "direct threat" standard; and (2) there must be an "individualized assessment based on a reasonable medical judgment about this employee's disability-not the disability in general-using the most current medical knowledge and/or the best available objective evidence."

Even assuming that an employee's disability "poses a direct threat to his own health," the EEOC expects employers to explore potential reasonable accommodations absent an undue hardship. Using the interactive process, the first goal is to find a way to return an employee to work while still performing the position's essential functions. When return to work is not available, an employer needs to consider other types of accommodations: telework, leave, or reassignment.

Barring an employee from the workplace must be viewed as a last resort, only when "the facts support the conclusion that the employee poses a significant risk of harm to himself that cannot be reduced or eliminated by reasonable accommodation."

New Rules on the Horizon

What's next? Selecting a pared-down workforce? Employee-mandated vaccines? The employment setting is constantly changing, and we are all dealing with the "new normal."

Whether an employer is deciding which employees to return from a layoff or furlough or selecting employees for layoff to reduce the size of the workforce, employers should take caution and consult counsel. With employees denied work and special federal unemployment benefits scheduled to end during July, employers need to be prepared over the coming months for a spike in discrimination charges and related lawsuits.

As for vaccines, there is no publicly available vaccine for COVID-19 to date, but that day will come. The EEOC has stated an employer cannot compel its employees to take an influenza vaccine regardless of their medical conditions or religious beliefs. Instead, the current EEOC guidance urges employees to encourage employees to get vaccinated, as opposed to a blanket mandate that may pose risk. However, this area of the law may change in the time of COVID-19 and will be closely monitored by the SESSIONS FIRM.

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