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May 15, 2020

Stroock Special Bulletin

By: Howard S. Lavin, Elizabeth E. DiMichele

As state and local governments begin lifting stay at home orders and employers take steps to resume on-site work, the Equal Employment Opportunity Commission (EEOC) has updated its ongoing guidance about employer obligations under the federal Americans with Disabilities Act (ADA), most recently addressing the return of high-risk employees.

In New York, Governor Andrew Cuomo’s New York on PAUSE order, which shut all non-essential businesses, has been extended through June 13, 2020. (See Executive Order 202.31.) As of May 15, however, the restrictions on the in-person workforce at non-essential businesses no longer apply to Phase One industries in regions that have met certain prescribed health and safety metrics (to date: the North Country, the Finger Lakes, Central New York, the Southern Tier and Mohawk Valley). More specifically, Governor Cuomo established seven metrics, each of which must be met before a region may begin a phased reopening, including (i) a decline in hospitalizations and infections over a 14-day period; (ii) a decline in hospital deaths over a 14-day period; (iii) at least 30 percent availability of both total hospital beds and ICU beds; and (iv) the availability of widespread diagnostic testing and robust tracing capacity.  This extension and modification to the New York on PAUSE order marks the beginning of a four-part, phased in reopening of certain industries, as follows:

  • Phase 1:  Construction and manufacturing functions; wholesale suppliers and select retail businesses offering curbside pickup;
  • Phase 2: Finance, insurance, real estate and certain other retail businesses;
  • Phase 3: Restaurants and hotels; and
  • Phase 4: Arts and entertainment venues, as well as schools.

Taking a Risk-Based Approach to Returning Employees On-Site

According to the Centers for Disease Control and Prevention (CDC), certain individuals are at greater risk from COVID-19, including those age 65 and older, pregnant women and individuals who have serious underlying medical conditions, particularly if not well controlled, including those with (i) chronic lung disease or moderate to severe asthma, (ii) serious heart conditions, (iii) compromised immune systems caused by, among other conditions, cancer treatment, smoking, bone marrow or organ transplantation, (iv) poorly controlled HIV, (v) diabetes, (vi) chronic kidney disease undergoing dialysis, and (vii) liver disease. As a result, the CDC advises those at risk for severe illness to take various protective measures.

Should companies take a similar risk-based approach to returning employees to on-site employment? On its face, this would appear to be prudent and enable companies to harmonize their obligation to provide a safe workplace with their obligation to provide a workplace free from discrimination based on protected characteristics, including age, disability and pregnancy – all factors that the CDC says put individuals at higher risk of severe consequences from COVID-19.

The EEOC, however, has set a very high bar for employers who would make distinctions between employees who are at high risk of severe consequences from COVID-19 and those who are not at high risk — that is, a standard well beyond making reasonable judgments.

The EEOC cautioned that if an employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him or her at “higher risk for severe illness” if he or she contracts COVID-19. Indeed, such action is only permitted under the ADA if the employer demonstrates that the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.

According to the EEOC, this is a “high standard,” – an affirmative defense – which requires an individualized assessment based on a reasonable medical judgment about the particular employee’s disability – not the disability in general – using the most current medical knowledge and/or the best available objective evidence.  In making this determination, the employer must consider:

  • The duration of the risk;
  • The nature and severity of the potential harm;
  • The likelihood that the potential harm will occur; and
  • The imminence of the potential harm.

Analysis of these factors will likely include consideration of the severity of the pandemic in a particular geographic area and the employee’s own health – for example, is the employee’s disability well-controlled? – and his or her particular job duties.  This determination also would include the likelihood that an individual will be exposed to the virus at the worksite. Preventative measures that an employer may implement to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to such employee’s own health, the employer still cannot exclude the employee from the workplace, if there is a reasonable accommodation which would eliminate or reduce the risk, thereby making it safe for the employee to return to the workplace while still permitting performance of essential functions.

If there are no suitable accommodations or if potential accommodations pose an undue hardship on the employer — that is, significant burden or expense — then an employer must consider other accommodations, such as telework, leave, or reassignment, including to a different job at a location where it may be safer for the employee to work or that permits telework.

In this context, COVID-19 pits an employer’s obligation of providing a safe workplace against its obligation to maintain a workplace free from discrimination. In particular, employees with well-controlled underlying health conditions (who do not generally consider themselves to be disabled) may raise disability discrimination claims, alleging that they are being treated differently by their employer because they are at higher risk of severe consequences from COVID-19. To avoid or at least reduce this conflict, many companies are not aggressively seeking an immediate and complete return to on-site work. Instead, they are proceeding cautiously, shifting back to on-site work gradually over a prescribed period and continuing remote work for employees who can perform their job duties from home.

There are, of course, certain kinds of work that only can be performed on-site. For employees who perform such work, an employer might share the CDC guidelines and give employees who fall within any of the at-risk groups the option to remain home even after others start to return. When employers require employees to return to work, the likelihood of employees filing claims is, of course, greater.

Caution is warranted about asking employees to disclose things like medical conditions (e.g., compromised immune systems, pregnancy, etc.).  Therefore, an employer could (i) tell employees that they need not share the reason why they will not be on-site and/or (ii) promise that medical information will be kept confidential and shared both in accordance with applicable law. This is not a perfect solution since the employee would still be identified as at risk. Those who remain at home may assert that they were denied equal terms and conditions of employment based on disability, age or gender, for example. Even if those claims are not asserted in connection with the reopening, an employee who later is subject to an adverse action, such as termination, could claim his or her identification as being in the at-risk group was the deciding factor in the company’s decision; however, without more, such claims are unlikely to be found to have merit.

The EEOC’s guidance poses yet another consideration for companies as they navigate the daunting task of returning to on-site work while providing a safe workplace without running afoul of the anti-discrimination laws.

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For More Information:

Howard S. Lavin

Elizabeth E. DiMichele

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.