Reopening Business After COVID-19: Managing Higher-Risk Employees
A day after Florida’s phase one order went into effect, the Equal Employment Opportunity Commission issued guidance for employers on managing employees who are at higher risk for severe illness from COVID-19.
The EEOC addressed reasonable accommodation for higher-risk employees amid the coronavirus pandemic. The guidance is of particular importance for employers whose workers are refusing to return to work because they are at higher risk for coronavirus.
How Should Higher-Risk Employees Request Reasonable Accommodation?
The EEOC outlined the appropriate protocols for requesting reasonable accommodation if you are a higher-risk employee during the COVID-19 pandemic. If you are an individual deemed at higher risk for COVID-19 by the Centers for Disease Control and Prevention, you or your physician must notify the employer that you require a reasonable accommodation due to your medical condition or high-risk factor.
Employees may request accommodation either orally or in writing. While the employee requesting accommodation may use the term “reasonable accommodation” or reference the Americans with Disabilities Act, they are not specifically required to do so.
The employee must notify their employer of their medical condition that necessitates a reasonable accommodation. Then, the employer may ask questions or request medical documentation in order to decide whether they can provide the accommodation without undue hardship.
Should the Employer Take Action if the High-Risk Employee Does Not Request a Reasonable Accommodation?
If an employer is aware that one or several of their employees have a condition or disability that puts them at higher risk for severe illness from COVID-19, can they restrict access to the workplace or make necessary changes to ensure that employee’s safety? No, unless the employer himself or herself requests a reasonable accommodation, the employer is prohibited from taking action and excluding the employee solely because of the employee’s disability or condition.
The ADA prohibits taking any adverse action against or excluding an employee based on their disability, even if the CDC says that individuals with that condition are at higher risk for complications from coronavirus. Under the employment law, excluding employees due to their disability is illegal unless their condition poses a “direct threat” to the worker’s health that cannot be reduced or eliminated by reasonable accommodation.
However, even if a worker’s condition poses a direct threat to their own health, their employer cannot take any adverse action unless there is absolutely no way to provide a reasonable accommodation that would not cause undue hardship to the company.
What Reasonable Accommodation is Appropriate When an Employee’s Disability Poses a Direct Threat?
If an employee’s disability or another condition poses a direct threat due to COVID-19 risks, the following types of accommodation may be appropriate to eliminate or mitigate the threat:
- Additional or enhanced personal protective equipment, in addition to the regular PPE that the employer provides to other employees returning to work; and
- Additional or enhanced protective measures, such as installing a safety barrier that would separate the higher-risk employee from other workers or the public.
If you are reopening your business after Florida’s stay-at-home order was lifted and you have high-risk employees who are refusing to return to work, speak with a West Palm Beach employment law attorney. Contact Pike & Lustig, LLP, for a case evaluation. Call at 561-291-8298 to discuss your case.