Can Employers Require High Risk Employees to Stay Home? Latest EEOC Guidance on Interpreting the ADA During the Pandemic

The CDC has identified a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. The EEOC has recently provided updated guidance on how employers should treat employees in this category. To summarize the EEOC guidance, while employees may request to stay home, and employers are required to consider whether that would be a reasonable accommodation, employers cannot require high risk employees to stay home unless they have requested to do so or their reporting to work would rise to the level of a “direct threat.”

What if an employer already knows an employee is at higher risk? Can the employer require the employee to stay home?

Generally, no. Even if the employer is concerned about the employee’s health, the employer cannot take any adverse action against the employee (such as requiring the employee to stay home) on the basis of being higher risk, unless the employee’s disability rises to the level of a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.

“Direct threat” is a high standard to meet.  It requires an individualized assessment based on a reasonable medical judgment about the employee’s disability – and cannot be based solely on the employee’s disability being listed on the CDC list. If the employee’s disability does pose a direct threat, the employer must attempt to provide a reasonable accommodation such as telework or reassignment before excluding the employee from the workplace.

Can employers ask employees if they have a disability that might put them at higher risk?

The EEOC has not provided clear guidance on this issue, so we currently are recommending against asking employees if they have a disability that might put them at higher risk.  However, it is would be permissible to inform employees generally that if they have a disability that would put them at higher risk, and they wish to request a reasonable accommodation (which could include staying home), that the employer would be happy to consider such requests.

In a previous guidance issued by the EEOC in response to flu pandemics, the agency cautioned against asking about medical conditions that might put employees at higher risk.  However, the EEOC did not close the door entirely on such inquiries.  The guidance stated that if a pandemic “becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza.” It’s possible that the current COVID-19 pandemic may fit the situation that the EEOC described, but the EEOC has not yet provided clarification.

In the absence of definitive guidance from the EEOC, there are significant risks involved in making disability-related inquiries, including the risk of claims after the pandemic based on the employer’s knowledge of an employee’s disability. Accordingly, we recommend employers avoid making these inquiries until the EEOC provides further guidance.

Employers may ask employees if they have symptoms of coronavirus or have tested positive.  Additionally, employers may invite employees to voluntarily disclose any underlying condition that make them vulnerable to the coronavirus, so that the employer may provide any necessary reasonable accommodations.

Do employers have to provide reasonable accommodations to employees who have a higher risk from COVID-19?

Potentially, yes, if the employee’s higher risk is due to a preexisting condition rising to the level of a disability and the accommodation does not cause an undue hardship. See our previous guidance on reasonable accommodations here.