As state-wide levels of COVID-19 continue to decrease, New Jersey employers will need to examine their re-opening and “return to work” strategies. As expected, these unprecedented times have left employers with various questions on how to handle this process while also avoiding liability under the Americans with Disabilities Act (ADA) or the New Jersey Law Against Discrimination (NJLAD).
On May 7, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released Guidance that employers and their attorneys can utilize while developing strategies for returning their employees to work. (The May 7, 2020 Guidance was a follow up to and supersedes Guidance dated May 5, 2020).
The May 7, 2020 Guidance focused on what, if any, protections and accommodations employers should offer to employees with known medical conditions, making them potentially high-risk for becoming severely ill from COVID-19. (This should not be confused with steps employers can and should take in the event an employee has been diagnosed with COVID-19).
This Guidance still leaves unanswered questions for employers. Nonetheless, it makes clear that, if an employee does not request a reasonable accommodation, the ADA does not mandate that the employer take any action.
Also, if an employer has serious concerns about an employee’s health risks due to COVID-19, the employer is not permitted to completely bar the employee with known medical conditions from returning to work while other employees are permitted to resume on-site work. Instead, the May 7, 2020 Guidance sets forth the steps for a “direct threat analysis” employers should apply to determine if an employee’s medical condition does, in fact, put the employee at an increased risk for severe illness from COVID-19.
The direct threat analysis involves determining whether an employee has a disability that poses a “significant risk of substantial harm” to his or her own health. Employers should then conduct an “individualized assessment” to determine the likelihood of the employee being infected at work and whether the threat can be reduced or eliminated through a reasonable accommodation. This assessment should rely upon “reasonable medical judgment” and “objective evidence,” not on “subjective perceptions . . . [or] irrational fears.” If a direct threat determination is made, the employee must not be excluded from returning to work but must be offered a reasonable accommodation in the form of telework, leave or reassignment to a safer location.
Adding a bit of confusion is the fact that the EEOC does prohibit the employer from requiring the employee to work remotely. It is suggested that, if an employer finds it beneficial to have certain employees work from home due to potential health risks, remote work should be offered to all employees so as not to target certain employees due to their medical conditions. The caveat is that the remote work should not pose an undue burden to the business.
The biggest takeaway from the newest EEOC Guidance is that the ADA does not allow the exclusion of employees from returning to work simply because of the perception that they have an underlying medical condition that might pose a higher risk of severe illness if the individual contracts COVID-19.
Again, if an employee does not request a reasonable accommodation, the ADA does not mandate that the employer take any action.
To read the EEOC guidance in its entirety, please click here.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
