ADA Accommodations for At-Risk Employees: EEOC Reasonableness Standard, Return to Work Policies, Testing, Vaccines

Description

The ADA was not amended due to COVID-19, but the pandemic has created new issues under the ADA. While the ADA requires reasonable accommodation, there has been little guidance from the EEOC on what this means in practice and how employers must act. COVID-19 has increased the number and classification of vulnerable employees as defined by federal law.

Employment counsel must be aware of the current EEOC guidance, initially issued on May 5, 2020, and updated as recently as December 16, 2020, addressing the ADA and COVID-19 directly. The initial EEOC guidance allowed an employer to ask employees deemed a "direct threat to self" to remain at home. Still, that position was later clarified that the "direct threat" standard is high. To meet this standard, the employer must show a "significant risk of substantial harm" to the employee due to COVID-19. If that assessment is met, the employer must attempt to find reasonable accommodation to reduce or eliminate the direct threat by engaging in the interactive process with the employee.

Employment counsel must advise employers and employees on how to engage in the interactive process. The analysis of an employee's request for reasonable accommodation must be made on an individual basis, analyzing the factors listed above to determine whether accommodations such as additional PPE, adjusted work schedules or location, or some other change could protect the employee without being an undue hardship to the employer.

In this evolving situation, employers must consider whether to require COVID testing for employees to return to work and, if so, put policies and procedures in place. Once an effective vaccine is readily available, employment counsel must offer guidance on the legality of requiring vaccination for continued or future employment.

Listen as our authoritative panel discusses the current state of EEOC guidance on the ADA and what employers can and should do when facing a return to work employee who is medically vulnerable. The panel will provide best practices and policies for compliance with the current laws and mitigate future lawsuit risks.