August 21, 2020

Can I Stay Home? COVID-19 And High-Risk Employees

by Judith Galeano, Esq., Mowery Youell & Galeano, Ltd.

The unprecedented impact of the COVID-19 pandemic has created new concerns in the workplace for certain employees who, because of their age or underlying health conditions, are considered at high risk of suffering severe complications from COVID-19.

As employers contemplate bringing employees back into workplace, two crucial questions arise: can high-risk employees be required to return to the work? Can they be required to remain at home?

To answer these questions in our new reality, employers must remember that all existing EEO and anti-discrimination laws still apply. Under the Americans with Disabilities Act, some employees with recognized disabilities are also high risk COVID-19 employees. For these high-risk employees, many may request a reasonable accommodation of telework. If the employee can work remotely and the telework does not cause the employer undue hardship, the employee should be accommodated.

For high risk employees who cannot telework or who wish to return to workplace, an employer cannot exclude them from the workplace solely because they are high risk. Rather, the employer must engage in the interactive process with the employee to determine whether a reasonable accommodation can be provided. Creativity and flexibility on the part of both the employer and the employee is crucial in determining whether a reasonable accommodation is possible. Often these reasonable accommodations can take the form of low-cost solutions such as plexiglass dividers and barriers to ensure minimum distances. More involved accommodations can include temporary restructuring of the employee’s marginal duties, temporary transfers or modifications of work shifts or schedules to limit exposure.

It may be that not every high-risk employee can return to the workplace. If the reasonable accommodation requested creates an undue hardship to the employer, an employer is not required to make the accommodation. Similarly, an employer may exclude a high-risk employee from the workplace if that employee’s disability poses a “direct threat” or significant risk of substantial harm to the health or safety of himself or others that cannot be eliminated or reduced by reasonable accommodation.