EEOC updates Q&A, specifically re employees with an underlying disability that puts them at “higher risk” re coronavirus

The EEOC updated its prior Q&A re coronavirus, adding three questions (numbered G3-G5) to address the needs of employees who already suffer from an underlying disability that, now, puts them at “higher risk” related to coronavirus.

First in questions G3-G4, the EEOC advises that an employer is obligated to consider whether a reasonable accommodation exists to permit such an individual to return to work once a request is made. Until a request is made, the employer has no obligation to consider the possibility of a reasonable accommodation. The EEOC explains too that the request need not be made formally — it may be made “in conversation or in writing” — and it need not be made by the employee themselves — it may be made by the employee “or a third party, such as an employee’s doctor.” Indeed the request need not even be a request, it is enough if the employee “let(s) the employer know that she needs a change for a reason related to” an underlying disability.

Question G4 confirms that an employer need not consider a reasonable accommodation even when the company knows the worker has an underlying disability that might put them at a “higher risk” related to coronavirus, until such a request is made. However where the employer is itself concerned that the employee’s disability might put them at a “higher risk” related to coronavirus, the employer cannot on its own initiative “exclude” the worker from work unless it can prove a “direct threat” to the worker’s own health (or the health of others) and, further, that the “direct threat” cannot be removed by reasonable accommodation, such as allowing “telework, leave, or reassignment” if reasonable. The EEOC discusses the possibility of showing such a “direct threat,” noting it “is a high standard,” with proof that “if, after going through all these steps (of considering the relevant risk, the possibility of reasonable accommodation, etc.), 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.”

Question G5 discusses possible accommodations that should be considered by an employer and worker in trying to determine if a reasonable accommodation might exist to permit a worker with an underlying disability to work despite a “higher risk” related to coronavirus (emphasis added).

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.