Labor & Employment Law Daily How does ADA ‘direct threat’ analysis apply to employees with CDC-listed COVID-19 high-risk medical conditions?
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Monday, May 11, 2020

How does ADA ‘direct threat’ analysis apply to employees with CDC-listed COVID-19 high-risk medical conditions?

By Pamela Wolf, J.D.

Where the employee does not request a reasonable accommodation, “the ADA does not mandate that the employer take action,” the EEOC said.

The EEOC has clarified a question that has been playing on the minds of employees and employers alike, as well as HR staff and labor and employment practitioners: how the ADA applies to workers who do not want to return to the workplace because they have one of the medical conditions identified by the CDC that puts them at greater risk of severe illness from COVID-19 infection. In this particular scenario, though, the employee has not requested a reasonable accommodation, and so the “direct threat,” to the employee’s own health, analysis may come into play.

In its ongoing Q&A series related to COVID-19, the Commission previously posted a question and answer that addressed this scenario, but took it down because the agency believed it had been “misinterpreted in press reports and social media.” The EEOC wanted to revise and update the Q&A “to ensure that it is clear.”

ADA and COVID-19 high-risk employees. Here is the EEOC’s updated Q&A verbatim:

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

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.

The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). 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. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). 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.

It’s all about the direct threat. Again, in this scenario, the employee has not requested an accommodation, which puts the focus on “direct threat.” “It is important that employers understand that the ADA does not allow them to act against employees solely because the employee has a CDC-listed underlying medical condition,” EEOC Legal Counsel Andrew Maunz said in a press release. “Employers must do a thorough direct threat analysis, which includes an individualized assessment based on relevant factors and a determination of whether the threat can be reduced or eliminated through a reasonable accommodation.”

Notably, the EEOC’s No. G.4. addresses what an employee needs to do in order to request an accommodation for a medical condition on the CDC’s higher risk list.

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