Problems with High Risk Employees Returning to Work
What is the best response when an employee is hesitant to return to the workplace due to an underlying medical condition? And what should you do if there is an employee you don’t think should return?
Scenario 1: The employee does not want to come back
When an employee is concerned about returning to work, employers should engage in the normal interactive process under the Americans with Disabilities Act to determine whether the condition they are concerned about is a disability and, if so, how it creates a limitation. https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.
Consider also whether the employee or a family member is in one of the high-risk categories enumerated by the CDC.
What are high risk conditions?
The medical knowledge is evolving, but the resources an employer might reasonably rely on are published by the US Centers for Disease Control and Prevention (CDC):
- chronic kidney disease that requires dialysis
- chronic lung disease
- diabetes
- liver disease
- moderate to severe asthma
- severe obesity (body mass index of 40 or higher)
In addition, the CDC recognizes the following conditions that can cause a person to be immunocompromised:
- bone marrow transplantation
- cancer treatments
- immune deficiencies
- organ transplantation
- poorly controlled AIDS or HIV
- prolonged use of corticosteroids or other immune weakening medications
In addition, the EEOC recognizes that employers may need to accommodate employees with pre-existing mental health disorders that may be exacerbated by COVID19.
Next, take a look at what the employee is asking for. If the employee is requesting telework and that is feasible for his or her job duties, it is likely to be considered a reasonable accommodation. The primary topic to be discussed with the employee is how the proposed accommodation will enable them to continue performing the essential functions of the job. Although timeframes may be unpredictable in the current circumstances, the best practice is to allow the accommodation for a definite period of time (e.g., 30 days, 60 days) agreeing to revisit at the end of that time period, rather than promising an indefinite accommodation.
Scenario 2: You don’t think the employee should come back
What if an employee has not asked for accommodation but you as the employer believe the employee should stay home due to being in a high-risk group? In that case, the EEOC guidance requires an analysis under the “Direct Threat” standard.
Barring an employee from returning to work should be considered only in rare circumstances. An employee will be considered a direct threat to himself or others only if his presence in the workplace poses “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." This requires an individualized, fact-based analysis, focused on the individual’s particular condition, not what the employer thinks about the disability in general.
In the current pandemic environment, the EEOC has concluded: [The guidance of the CDC and other public health authorities] manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.” (Emphasis added).
That does not mean a person whom you believe is at risk of contracting the virus poses a direct threat to himself or others that cannot be accommodated in the work place. Following the EEOC guidance might mean working with an employee to find an acceptable solution or, in the absence of medical information to support the employer’s concerns, it might mean stepping back and letting the employee make the best decision with his or her medical provider.
Employers are focused on getting back to business and doing so as safely as possible. Taking care of your employees comes in many forms, and while you cannot necessarily require employees to do what you think is best for them, you have both the right and the obligation to engage with employees to find a way to keep the workplace safe and productive.
Feel free to contact our Employer Response Team to discuss your specific situation.
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