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EEOC Releases New Guidance to Employers on Returning Employees to Work and ADA Compliance

Throughout the COVID-19 pandemic, the EEOC has periodically released updates to its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here and here. These questions and answers have provided employers with much needed guidance on the EEOC’s position on how employers can ensure the safety of their employees while at the same time not running afoul of the ADA.

On May 5, 2020, and then again on May 7, 2020, the EEOC updated its Technical Assistance Questions and Answers. These latest updates address the EEOC’s position on whether, and in which circumstances, an employer may prevent an employee from returning to work because the employer knows the employee has a medical condition that will place the employee at a higher risk of severe illness if the employee were to contract COVID-19 (e.g., those with chronic lung disease, asthma, heart disease, or are immunocompromised).

First, the new guidance makes clear that “[i]f 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.” Rather, the employer may only take this action if the employee’s illness poses a “direct threat” to the employee’s health that cannot be reduced or eliminated by a reasonable accommodation. The EEOC notes that this is a high standard, and an employer seeking to exclude an employee based on a direct threat to the employee’s health must 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.”

And even in the event an employer determines an employee’s disability poses a direct threat to the employee’s own health, the employer may still not take an adverse action or exclude the employee on this basis unless, absent undue hardship, the employer cannot provide an employee a reasonable accommodation. The EEOC lists several reasonable accommodations employer’s should consider that may accommodate a medical condition of an employee at a higher risk for severe illness if the employee contracts COVID-19, such as providing PPE, erecting barriers around the employee’s workspace to offer additional protection, modified work hours, and telework.

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About this Author

Gary Enis Associate Dallas Labor and Employment
Associate

As an associate in the firm’s labor and employment group, Gary assists clients with traditional labor issues and complex employment matters.

Gary focuses on complex labor and employment litigation involving employment discrimination lawsuits, collective actions, and trade secret and restrictive covenant matters. Gary also helps employers comply with federal, state and local labor and employment laws by advising on workplace policies and procedures. In addition, he participates in several of the firm’s pro bono projects. 

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Alan Marcuis Employment Attorney Dallas Hunton AK
Partner

Alan represents management in complex labor and employment law matters, including contract, trade secret and post-employment restrictive covenants, EEO litigation, collective bargaining and labor relations.

At Hunton Andrews Kurth LLP, Alan serves as co-head of the Unfair Competition & Information Task Force and Hiring Partner for the firm’s Texas offices. He is a contributing author to the the firm’s Employment & Labor Perspectives blog.

Alan is admitted to practice in the United States Court of Appeals for the Fifth Circuit, the United States District Court: for the Northern District of Texas, Southern District of Texas, Western District of Texas, Eastern District of Texas and Northern District of Oklahoma.

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