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Permissible Employer Inquiries (If Any) to Identify Employees at High Risk from COVID-19 Exposure

The CDC list of people at high risk of death or serious illness from contracting COVID-19 is more than just the general guidance we often hear about the elderly or immune-compromised.  Per the CDC:

Based on what we know now, those at high risk for severe illness from COVID-19 are:

  • People 65 years and older

  • People who live in a nursing home or long-term care facility

People of all ages with underlying medical conditions, particularly if not well controlled, including:

  • People with chronic lung disease or moderate to severe asthma

  • People who have serious heart conditions

  • People who are immunocompromised

    • Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications

  • People with severe obesity (body mass index [BMI] of 40 or higher)

  • People with diabetes

  • People with chronic kidney disease undergoing dialysis

  • People with liver disease

See the link and video here.

The Disquieting Death Statistics for People at High Risk

The CDC provides guidance specific to each of the above risks.  But its first safety tip for those listed above is, “Stay home if possible.”  That is sage advice given the CDC’s COVID-19 death counts by age and contributing health conditions.  

And whatever you want to say about the percentage probabilities of being hospitalized, few would want to take responsibility for high-risk individuals breaking the CDC’s Rule # 1 for high risk individuals: Stay home.

The EEOC’s Protection of High-Risk Employee Work Rights

The EEOC, fulfilling its brief to protect employee work rights, takes the opposite view.  For high-risk employees who cannot telework, the EEOC has taken the position in its COVID- 19 ADA Guidance that employers may not postpone an employee’s start date or withdraw a job offer just because they fall in a high-risk age or medical category (Question C.5.).  

Instead, at least for high-risk individuals with preexisting disabilities, EEOC guidance would require reasonable accommodation in the form of reduced contact, by use of plexiglass and other distancing barriers (Question D.1.).  In fact, almost as a warning to employers, the EEOC touts the high bar that must be met to use the “direct threat” defense to accommodating disabled employees (Question G.4.).  Claiming direct threat as a basis for not accommodating or employing high-risk employees requires an individualized (regulations-mandated) assessment of the risk, potential harm, severity of the pandemic in the locale, and job duties, as we previously reported.

In that vein, the EEOC requires that employees let the employer know of a need for an accommodation due to a disability that puts them at high risk, noting that, “if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action."

Can Employers Require Employees to Disclose If They Are at High Risk?

The EEOC has largely avoided this question, as evident from the strictly legal (if not perhaps, for some, fatal) guidance quoted above that the ADA requires nothing from employers for high-risk employees who fail to seek accommodation.

First Answer:  Employers May Prompt Employees to Volunteer the Information

The best we have from the EEOC so far, and it is guidance that employers should consider using in liberal fashion, is this:

D.8. May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)

Yes. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace reopens. Employers may begin the "interactive process" - the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

This guidance can be deployed with some teeth by combining the above inquiry with notice to employees of the CDC’s list of people at high risk, and the risk/morbidity statistics for those individuals.  Such a notice could have a fair chance of prompting voluntary employee disclosure of high risk, so that employers can work to manage it.

Second Answer:  Direct Inquiry May Be Permissible but Has Not Been Approved

The other answer is admittedly a derivation of EEOC guidance to the effect that the “direct threat” of the COVID-19 virus allows employers to mandate employee COVID-19 testing before allowing employees to re-enter the workplace—never mind allowing symptom inquiries, as we previously reported.  

Here, it is worth remembering that the definition of “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r).

The EEOC’s justification for allowing mandatory testing is that an individual with COVID-19 will pose a direct threat to the health of others, therefore testing is “job-related and consistent with business necessity,” as required by the ADA.  Based on the definition of “direct threat,” the EEOC is saying in effect that for everyone, the risk of exposure to someone with COVID-19 is significant.  

How much more so is there “significant risk” for employees at high risk from COVID-19 exposure?  Normally, direct inquiries about high risk might be forbidden as likely to elicit information about a disability.  But in this not-normal world of pandemic, the EEOC guidance allowing mandatory testing to protect “others” from the direct threat of COVID-19 would appear to justify direct inquiries to protect “the individual” - to directly ask whether employees fall within the CDC’s list of people at high risk from COVID-19 exposure.

Whether any given employer should take that position—at present without the explicit cover of EEOC guidance—is itself an individualized inquiry into that employer’s work environment and risk factors.

© 2020 Foley & Lardner LLPNational Law Review, Volume X, Number 153

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About this Author

Kenneth Broodo, Foley Lardner Law Firm, Dallas, Labor and Employment Litigation Law Attorney
Partner

Labor law attorney Kenny Broodo is board certified by the Texas Board of Legal Specialization and represents management in diverse markets such as small business, energy, technology, manufacturing, insurance, retail, wholesale, service, sales and marketing, private schools and universities, medical, entertainment, automobile sales and food. He also represents executives in contract negotiations and disputes. Kenny is especially adept at helping small to mid-size businesses maximize the opportunity to achieve employee stability and productivity, while avoiding employment...

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