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Friday, May 8, 2020

Coronavirus Update 5-8-2020: Can you legally refuse to return to work to someone at “high risk” for COVID-19 complications?


As you start recalling employees to your physical workplace from remote work-from-home arrangements or furlough, you are concerned about an employee who has an underlying medical issue that the CDC says places him at a higher risk for complications from coronavirus.

Can you refuse to return this employee to work?

According to recently updated guidance from the EEOC, the answer might be “yes.”

According to the CDC, the following medical conditions places one at a higher risk for severe illness from coronavirus.

  • Chronic lung disease or moderate to severe asthma
  • Serious heart conditions
  • Immunocompromised (such as cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications)
  • Severe obesity (body mass index of 40 or higher)
  • Diabetes
  • Chronic kidney disease with dialysis
  • Liver disease

Each of these qualifies as a disability under the ADA, meaning that if such an employee requests WFH or other accommodations, you would have to engage in the interactive process with the employee and grant an accommodation to permit the employee to continue performing the essential functions of the job unless it created an undue hardship.

What if, however, you want to deny return-to-work to this employee because he or she is “high risk?” The EEOC says that because COVID-19 might pose a “direct threat” to the employee, under the right circumstances an employer can deny his or her return to work.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.…
A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination 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 on the best available objective evidence.

In addition to the traditional direct threat factors (duration of the risk, nature and severity of the potential harm, likelihood that the potential harm will occur, and the imminence of the potential harm), in determining whether a particular employee is a “direct threat,” the employer should consider:

  • The 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;
  • The likelihood that an individual will be exposed to the virus at the worksite; and 
  • Measures that the employer may be taking in general to protect all workers (such as mandatory social distancing).

Concluding that the employee’s underlying medical issues pose a direct threat, however, is not the end of the analysis. If there is a reasonable accommodation (i.e., telework, leave, or reassignment) that would eliminate or reduce the risk to the employee, then the employer must consider and offer it. In most cases, these accommodations will solve the problem, at least in the short term.

According to the EEOC, “An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”

These are complicated issues that employers should not be considering without the input of employment counsel, in the opinion of this employment counsel.

* Image by Sumanley xulx from Pixabay