EEOC Guidance Warns Against Excluding High Risk Employees from Returning to Work Absent Individualized Assessments

May 08, 2020

The Equal Opportunity Employment Commission updated its guidance for compliance with the Americans with Disabilities Act and other EEO laws during the pandemic, adding three new questions and answers addressing return-to-workplace issues.

The new guidance warns against excluding employees who are at higher risk for severe illness from COVID-19 from the workplace.  It emphasizes that employers may not exclude such employees out of a concern for their own safety, “solely because the employee has a disability that the CDC identifies as potentially placing him at ‘higher risk for severe illness.’” The employee’s disability must pose a “direct threat” to his health that cannot be reduced by reasonable accommodation. 

Individualized assessments necessary:  In the updated guidance, the EEOC outlines a multi-step process by which employers must evaluate whether the employee poses a direct threat to their own health, and whether such a threat can be reduced through reasonable accommodation.  Per the guidance, only after an employer completes this lengthy assessment and concludes that the employee poses a significant risk of substantial harm that cannot be reduced by reasonable accommodation, may the employer bar the employee from the workplace.