The Equal Employment Opportunity Commission (EEOC) updated and expanded a Technical Assistance Publication on May 5, 2020, and then again on May 7, 2020, focusing on employer obligations under the Americans with Disabilities Act (ADA) and related laws during the COVID-19 pandemic. The EEOC’s guidance comes as many states are reopening their economies and allowing businesses to admit employees back into the workplace.

The Question-and-Answer format of the updated publication reminds employers of their obligation to continue to provide reasonable accommodations in the workplace, even in the middle of a pandemic. Of particular interest to employers are situations where the worker is already known to have a medical condition that the Centers for Disease Control and Prevention (CDC) has flagged as putting the individual at higher risk for severe illness from COVID-19. The full CDC list is available here, and includes people with moderate to severe asthma, severe obesity, diabetes, and many other impairments. The EEOC’s position regarding the employer’s rights and obligations when returning such individuals to the workplace has two key parts.

First, according to the EEOC, unless and until the high-risk worker requests a reasonable accommodation, the employer is not required to take any proactive measures specific to the high‑risk worker, and in fact doing so may be viewed as discriminatory treatment. Before proactively implementing any sort of protective measure specific to a particular high-risk worker, the employer must first determine whether the disability at issue poses a direct threat to the worker’s health (or the health of others) that cannot be eliminated through reasonable accommodations.

Second, when determining whether a worker’s disability poses a direct threat, the employer must determine whether any reasonable accommodations could reduce the risk to the point that the employee could safely return to the workplace and perform essential job functions. According to the EEOC’s analysis, taking any sort of adverse action without first determining whether reasonable accommodations can be provided would constitute unlawful discrimination.

This leads to the question of what types of changes might be viewed as reasonable accommodations. The EEOC’s publication provides several examples, such as:

  • Providing additional or enhanced protective gowns, masks, gloves, or other personal protective equipment (PPE) beyond what the employer typically provides to other employees returning to the workplace;
  • Crafting additional or enhanced protective measures, such as erecting barriers between the disabled employee and other employees, or increasing the distance between the disabled employee and his or her co-workers;
  • Repositioning the disabled employee’s work station away from other employees’ work stations;
  • Eliminating non-essential job functions; and
  • Temporarily modifying work schedules such that the disabled employee can work at off-peak hours.

Conclusion. The EEOC’s updated technical assistance publication clarifies an employer’s rights and obligations when returning workers known to be in the high-risk categories as identified by the CDC. Employers should take caution before refusing to return those workers, or proactively implementing measures thought to be protective in nature. Unless the employee specifically requests an accommodation, the employer must first conduct a direct threat analysis, which involves considering whether reasonable accommodations might alleviate the risk.