EEOC Updates Guidance on Accommodating Disabilities in Light of Coronavirus
May 15, 2020
By: Colin A. Walker
The EEOC has again revised its Guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”: Recent changes include:
- Temporary Accommodations. The Guidance provides that, in light of the Coronavirus outbreak, employers may provide temporary accommodations and shorten or extend them as circumstances change. “[W]hen government restrictions change, or are partially or fully lifted, the need for accommodations may also change.” Employers may choose to place an end date on accommodations, such as a specific date or a specific event such as the change of a government restriction, but the employee may request an extension. Employers and employees must engage in an interactive process regarding accommodations and employers are obligated to make reasonable accommodations for disabilities unless they constitute an undue hardship.
- Hardship. The analysis of what constitutes an undue hardship may be different in light of the pandemic, as discussed in three Q&As in the Guidance. “In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.” It may be significantly more difficult to assess needs, reassign duties, or hire temporary workers. The sudden loss of an income stream, amount of discretionary funds available, and whether there is an expected date that government restrictions will be lifted, or extended, are relevant considerations. “These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.”
- High-Risk Individuals. The ADA does not allow an employer to exclude an individual from the workplace solely because the employee has a disability which the CDC or other health organization says places him or her at a higher risk regarding Coronavirus. Exclusion from the workplace is only allowed if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation. The EEOC notes that this is a “high standard,” which requires the employer to show that “the individual has a disability that poses a ‘significant risk of substantial harm’ to his own health.” This cannot be based solely on the disability being on the CDC’s list of high-risk conditions. The determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability using the most current medical knowledge and/or on the best available objective evidence. Even if such a determination is properly made, the employee cannot be excluded from the workplace unless a reasonable accommodation cannot be made to address the situation.
Colorado employers should be aware that the Amended Safer At Home Order provides that “People at high risk of severe illness from COVID-19 are urged to stay in their residence at all times except as necessary to seek medical care. Vulnerable Individuals cannot be compelled to work…”
Please note that the EEOC has revised its Guidance numerous times in recent weeks, as have other agencies. HR practitioners and employment lawyers would be well advised to study the entire Guidance and to consult it as issues arise.