Can Employers Require High Risk Employees to Stay Home? Latest EEOC Guidance on Interpreting the ADA During the Pandemic

The CDC has identified a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. The EEOC has recently provided updated guidance on how employers should treat employees in this category. To summarize the EEOC guidance, while employees may request to stay home, and employers are required to consider whether that would be a reasonable accommodation, employers cannot require high risk employees to stay home unless they have requested to do so or their reporting to work would rise to the level of a “direct threat.”

What if an employer already knows an employee is at higher risk? Can the employer require the employee to stay home?

Generally, no. Even if the employer is concerned about the employee’s health, the employer cannot take any adverse action against the employee (such as requiring the employee to stay home) on the basis of being higher risk, unless the employee’s disability rises to the level of a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.

“Direct threat” is a high standard to meet.  It requires an individualized assessment based on a reasonable medical judgment about the employee’s disability – and cannot be based solely on the employee’s disability being listed on the CDC list. If the employee’s disability does pose a direct threat, the employer must attempt to provide a reasonable accommodation such as telework or reassignment before excluding the employee from the workplace.

Can employers ask employees if they have a disability that might put them at higher risk?

The EEOC has not provided clear guidance on this issue, so we currently are recommending against asking employees if they have a disability that might put them at higher risk.  However, it is would be permissible to inform employees generally that if they have a disability that would put them at higher risk, and they wish to request a reasonable accommodation (which could include staying home), that the employer would be happy to consider such requests.

In a previous guidance issued by the EEOC in response to flu pandemics, the agency cautioned against asking about medical conditions that might put employees at higher risk.  However, the EEOC did not close the door entirely on such inquiries.  The guidance stated that if a pandemic “becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza.” It’s possible that the current COVID-19 pandemic may fit the situation that the EEOC described, but the EEOC has not yet provided clarification.

In the absence of definitive guidance from the EEOC, there are significant risks involved in making disability-related inquiries, including the risk of claims after the pandemic based on the employer’s knowledge of an employee’s disability. Accordingly, we recommend employers avoid making these inquiries until the EEOC provides further guidance.

Employers may ask employees if they have symptoms of coronavirus or have tested positive.  Additionally, employers may invite employees to voluntarily disclose any underlying condition that make them vulnerable to the coronavirus, so that the employer may provide any necessary reasonable accommodations.

Do employers have to provide reasonable accommodations to employees who have a higher risk from COVID-19?

Potentially, yes, if the employee’s higher risk is due to a preexisting condition rising to the level of a disability and the accommodation does not cause an undue hardship. See our previous guidance on reasonable accommodations here.

Can Employers administer COVID-19 tests? What about reasonable accommodations? Latest EEOC Guidance on Interpreting the ADA during the Pandemic

The EEOC continues to update its guidance [Link: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm] on the enforcement of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, during the coronavirus pandemic. Below are the highlights from the latest updates:

Can employers administer COVID-19 tests?

Yes. Employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Employers should ensure that that the tests are accurate and reliable, consistent with guidance from the U.S. Food and Drug Administration, CDC and other public health authorities.

Remember that employers who choose to test employees must keep the results confidential and store this information separately from the employee’s personnel file.

Do employers have to provide reasonable accommodations to employees who have a higher risk from COVID-19?

Potentially, yes, if the employee’s higher risk is due to a preexisting condition and it does not cause an undue hardship. The EEOC proposes a number of potential low-cost accommodations for reducing exposure in the workplace, including designating one-way aisles, and using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance. Additionally, temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying work schedules may be reasonable accommodations.

Do employers have to provide reasonable accommodations to employees who have a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic?

Potentially, yes, if it does not cause an undue hardship. Although many employees feel stress due to the pandemic, employees with certain preexisting mental health conditions, such as anxiety disorder or post-traumatic stress disorder, may have more difficulty handling the disruption and may require an accommodation.

Is the pandemic relevant to what accommodations can be denied as causing an “undue hardship”?

Yes. An accommodation that would not have posed an undue hardship prior to the pandemic may pose one now, as the pandemic changes what accommodations cause employers “significant difficulty or expense.” For example, it may now be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to acquire certain items as delivery may be impacted. Additionally, the EEOC notes that the sudden loss of some or all of an employer’s income stream and amount of discretionary funds available because of this pandemic are relevant considerations.

Does the pandemic change the interactive process or length of accommodations?

Potentially, yes. During the pandemic, the employers may still ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation

However, employers may choose to forgo or shorten the interactive process and grant accommodation requests on an interim, short-term or trial basis to keep up with the changing circumstances based on public health directives. Employers may choose to put an end date on the accommodation (for example, until the end date of a stay-at-home order) but must consider extensions, particularly if current government restrictions are extended or new ones adopted.

May employers require employees to wear face masks or gloves?

Yes. Employers may require employees to wear protective gear and observe infection control practices. However, employees may request reasonable accommodations under the ADA or religious accommodations from wearing this equipment.

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More from the New NLRB

National_Labor_Relations_Board_logo_-_colorJust a day after the newly Republican-majority National Labor Relations Board (NLRB) restored its “direct and immediate control” test for joint employer status and implemented a new employer-friendly test for handbook policies, it took two more big steps:  overturning a ruling limiting the changes employers can unilaterally implement in union workplaces and disallowing so-called “micro-units”.

In its decision regarding unilateral changes, the Board restored old precedent that permits employers to unilaterally change policies without the union’s permission – and without first bargaining with the union – if they have taken similar actions in the past.

In its decision regarding micro-units, the Board overturned its 2011 decision that made it easier for unions to organize very small groups of employees (which, in turn, made it easier for unions to get a foothold in an otherwise non-union company).  Instead, under the Board’s decision Friday, the old standard – where employers could establish that all employees sharing a community of interest should be included in the same unit – once again stands, and the playing field between unions and employers has become a bit more level.

These rulings aren’t surprising. As we wrote last week, we expect that the trend of employer-friendly decisions will continue, so stay tuned.

Court Holds Extended Leave Is Not An Accommodation Under the ADA

fmlaIn a very employer-friendly decision, the 7th Circuit Court of Appeals held that the Americans with Disabilities Act (ADA) does not give employees the right to take an extended leave of absence.

In Severson v. Heartland Woodcraft, Inc., the 7th court considered a discrimination claim brought by an employee who was fired when his 12 weeks of FMLA-protected leave for a pre-existing back condition expired and he was still unable to return to work. The employee claimed that his firing violated the Americans with ADA because the “at least two additional months” that he needed to recover from surgery after his FMLA leave ended was a “reasonable accommodation.” The 7th Circuit strongly disagreed, holding that the employee’s proposed accommodation of at least two additional months of leave was not reasonable. According to the Court, the ADA “is an anti-discrimination statute, not a medical leave entitlement.”

This ruling is contrary to the position taken by the Equal Employment Opportunity Commission (EEOC) that multi-month leaves of absences may be required under the ADA. According the EEOC, leave or extended leave as a job accommodation should be considered when a worker’s doctor is able to estimate a specific endpoint for the leave, the employee asks for the leave ahead of time, and the leave will likely enable the employee to fully perform the job afterward.

In light of the decision in Severson, employers (especially those in Illinois, Indiana and Wisconsin) can feel more comfortable refusing requests for multi-month and indefinite leave requests under the ADA. And while the language in Severson should apply to shorter leaves as well, its holding is limited to extended leaves, so employers still need to consider whether an employee’s request for a shorter leave (either after the expiration of an FMLA leave or if the employee did not qualify under the FMLA) would be a reasonable accommodation.

EEOC Speaks On Mental Health

EEOC LOGOThe Equal Employment Opportunity Commission (EEOC) recently published an informal publication outlining the rights of employees who suffer from depression, post-traumatic stress disorder (PTSD), and other mental health conditions under the Americans with Disabilities Act (ADA). Although nothing new per se, the publication serves as a great reminder as to the rights of employees with mental health conditions. The guidance addresses the following topics:

Discrimination. An employer may not discriminate against an employee — which includes firing, rejecting for a job or promotion, and forcing to take leave — simply because he or she has a covered mental health condition or has asked for a reasonable accommodation.

Privacy/Confidentiality. An employer may only ask medical questions (including questions about mental health) in the following situations:

  • When an employee asks for a reasonable accommodation.
  • After it has made a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
  • When it is engaging in affirmative action for people with disabilities, in which case an employee may choose whether to respond.
  • On the job, when there is objective evidence that an employee may be unable to do his or her job or that the employee may pose a safety risk because of the condition.
  • To establish eligibility for benefits under other laws, such as the Family and Medical Leave Act (FMLA).

If an employee informs an employer about a condition, the employer cannot discriminate against the employee, and it must keep the information confidential.

“Substantially limiting” condition. A condition does not have to be permanent or severe to qualify. What matters is that the condition — when the symptoms are present —  makes activities more difficult, uncomfortable, or time-consuming.

Reasonable Accommodation. The guidance encourages employees to ask for a reasonable accommodation before any problems occur or become worse. The EEOC gives the following examples of reasonable accommodations:

  • Altered break and work schedules (e.g., scheduling work around therapy appointments);
  • Quiet office space or devices that create a quiet work environment;
  • Changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them);
  • Specific shift assignments; and
  • Permission to work from home.

The guidance notes that where an employee cannot perform all the essential functions of the job and no paid leave is available, an unpaid leave may be a reasonable accommodation if the leave will help the employee get to a point where he or she can perform those functions. Remember that an employer must provide a reasonable accommodation unless it involves substantial difficulty or expense.

Harassment. The guidance reiterates that harassment based on disability is prohibited under the ADA, and that employees should follow employers’ reporting procedures to report any harassment.

We suggest that you review the guidance and make sure that your current policies and practices comply.

 

 

EEOC Issues New Rules for Corporate Wellness Programs

EEOC LOGOOver the last few years the Equal Employment Opportunity Commission has increasingly taken the position that corporate wellness programs — and in particular, the testing they require, the information they collect, and the benefits they provide — can violate discrimination laws. On Monday, the EEOC issued two final rules establishing the standards under which wellness programs will be reviewed.  (See our previous post regarding the proposed rules here.)

One of the rules specifically applies to Title I of the Americans with Disabilities Act (ADA), while the other applies to Title II of the Genetic Information Nondiscrimination Act (GINA).

The Final ADA Rule. The final ADA rule provides that “wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage.” The rule requires employers to give participating employees notice that tells them “what information will be collected as part of the wellness program, with whom it will be shared and for what purpose, the limits on disclosure and the way information will be kept confidential.”

The Final GINA Rule. The final GINA rule provides “that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee… No incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information … of an employee, an employee’s spouse, and an employee’s children.”

A few notes about the new rules directly from the EEOC:

  • Both rules will be effective beginning on January 1, 2017.
  • Both rules apply to all workplace wellness programs, including programs in which employees or their family members may participate without also enrolling in a particular health plan.
  • Both rules prohibit employers from requiring employees or their family members to agree to the sale, exchange, transfer, or other disclosure of their health information to participate in a wellness program or to receive an incentive.
  • Employers should ensure confidentiality by adopting and communicating clear policies, training employees who handle confidential information, encrypting health information, and providing notification to employees and their family members if breaches occur.

In light of these new rules, we suggest that you carefully review your wellness programs and corresponding financial incentives to ensure compliance. Also, note that under existing laws – even before the introduction of these new rules – you cannot:

  • Require employees to participate in a wellness program;
  • Deny health insurance to employees who do not participate in the program;
  • Take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in the program; or
  • Deny employees with disabilities reasonable accommodations that allow them to participate in a wellness program and receive any related incentives.

 

 

EEOC Provides Guidance on Leave as a Reasonable Accommodation under the ADA

EEOC LOGOEarlier this week, the Equal Employment Opportunity Commission (EEOC) issued a new resource document on when leave constitutes a reasonable accommodation under the Americans with Disabilities Act (ADA).  Although the EEOC has always taken the position that employer-provided leave can be a reasonable accommodation, the new document highlights some of the standards for when and how leave must be granted.  At its core, the EEOC resource clarifies that unpaid leave is a reasonable accommodation unless the employer can show that the leave causes an undue burden.

The new EEOC document covers the following topics and provides specific examples of each:

  • Equal Access To Leave.  Employees with disabilities must be afforded access to leave on the same basis as all other similarly-situated employees.  In other words, if an employer receives a request for leave from a qualified disabled employee, and the leave would be covered  under the employer’s existing leave policy, the employer must treat the individual the same as an employee who requests leave for reasons unrelated to a disability.  The EEOC notes here that “employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave,” but employers can’t apply that requirement discriminatorily.
  • Unpaid Leave.  Employers must consider providing unpaid leave as a reasonable accommodation to an employee with a disability if the employee requires it to return to work, as long as the leave would not create an undue hardship on the employer’s operations or finances.  This is required even if: “the employer does not offer leave as an employee benefit; …the employee is not eligible for leave under the employer’s policy; or … the employee has exhausted the leave the employer provides as a benefit …”
  • Interactive Process.  The employer is required to engage in an “interactive process” with the employee once the employee requests leave and the employer determines that the leave is not permitted under another program (such as PTO, FMLA or Worker’s Compensation).  As the EEOC acknowledges, the interactive process will likely continue during the employee’s leave, with the employer checking in on the employee’s progress and/or need for additional leave. When a leave is at issue, the EEOC recommends that the  process focus on the following questions:
    • “the specific reason(s) the employee needs leave …
    • whether the leave will be a block of time…, or intermittent …; and
    • when the need for leave will end
  • Maximum Leave Policies.  Employers may have leave policies that establish a maximum amount of leave allowed, but more time above the maximum would be a reasonable accommodation, unless the employer can show that allowing such leave would cause an undue hardship.
  • Return to Work.  An employer cannot require an employee to be “100% healed or recovered” to return to work — it must provide the employee a reasonable accommodation (including reassignment, for example) as long as the accommodation does not create an undue hardship.  An employer can refuse to allow an employee to come back to work with a medical restrictions only if the employee would pose a “direct threat” of substantial harm to him/her self or to others.
  • Undue Hardship.  When considering whether a leave would cause an undue hardship, the EEOC considers the following factors:
    • “the amount and/or length of leave required…;
    • the frequency of the leave…;
    • whether there is any flexibility with respect to the days on which leave is taken…;
    • whether the need for intermittent leave on specific dates is predictable or unpredictable…;
    • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner…; and
    • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.”

We encourage all employers to read this new EEOC resource document in full.  Although “nothing new” per se, it serves as a great reminder for ADA compliance and offers many specific examples that may be pertinent to your own employee leave issues.